• The Referendum Bill 2020 was gazetted, another clear indication that measures are being put in place for a possible plebiscite probably this year.
• This has licited all sorts of reactions from Kenyans with the much anticipated BBI report due this month.
As a country that struggles with post-election chaos every five years, we have had several constitutional moments as we are having now.
Some of them, foremost the 2007 post- election period and the progressive era of coalition building, produced the formal constitutional changes that led to the new Constitution in 2010 that we enjoy today.
While there are other moments that did not produce the desired changes, today we all discern the constitutional changes in what I would call 'The New Deal in a Constitutional Moment', where the majority of Kenyans agree that it is time to amend for the better.
The good gestures from President Uhuru Kenyatta and ODM leader Raila Odinga not only illustrate the point but also create the enabling environment for a non-contested referendum.
We have a perfect opportunity as a country to transform our ever-daunting political landscape and corruption-ridden institutions by amending the Constitution for the benefit of the majority.
It has been tested for 10 years and found to be good but it can be better when amended to accommodate its shortcomings caused by the high-octane political competition, poor public resource allocation and inefficient political representation.
The Referendum Bill 2020 was gazetted, another clear indication measures are being put in place for a possible plebiscite probably this year. This elicited all sorts of reactions from Kenyans with the much anticipated BBI report due this month.
The Referendum law is necessary to address any procedural issues that would arise from plebiscite processes. However, the Constitution has provided basic guidelines in Article 255, 256 and 257.
It provides for only two routes of enacting a constitutional amendment — the parliamentary initiative in Article 256 or Popular initiative in Article 257.
While there are other enabling laws or statutes such as the Elections Act, they only touch on referenda arising from the parliamentary initiative, with little on the procedure for a popular initiative.
Both the Constitution and the Elections Act do not address issues that would arise from a popular initiative, for example, in the event of several popular initiatives with conflicting proposals presented to the IEBC at the same time or several popular initiatives with competing propositions.
We have seen this before. Punguza Mizigo, Ugatuzi and now BBI are all initiatives meant to amend the Constitution. What would happen if the IEBC were to approve all of them to proceed to the county assemblies as per Article 257?
It is important to note that the popular initiative provisions are limited. They only note that if a popular initiative bill is approved by the majority of the county assemblies, then it shall be subjected to a referendum organised by the IEBC.
It does not give the approval limits by the assemblies. It leaves no room for any amendment of the Bill if need be. The bill must be approved or rejected as presented by the promoters.
Additionally, Article 257 does not give timelines for the parliamentary approval of a popular initiative Bill once it comes from the county assemblies.
This means Parliament may decide to sit on it for several months, depending on politics of the day, and that would affect the constitutional timelines for such a Bill.
The other challenges are how to approve the referendum question(s) and how to petition the conduct, results and validity of the referendum in a popular initiative.
These are the challenges we face today with the constitutional amendment process through a popular initiative. There has been, therefore, an urgent need for Parliament to pass a referendum law that will address all the anticipated challenges.
PUNGUZA MIZIGO AND BBI
Kenyans reflected through the BBI process about their government and public service. The people are more worried by the lack of jobs and income, which has led to increased poverty, inequality and frustrated hopes.
There is a desperate need for a shift in the economic paradigm, if we are to provide enough jobs to the youth and have enough revenue to meet the service and welfare needs of all Kenyans.
The Punguza Mizigo initiative had the main objective of amending the Constitution to reduce the burden and cost of governance currently borne by taxpayers.
It proposed strengthening devolution and Parliament, punishing the rampant theft of public money and reducing the public wage bill and recurrent expenditure.
The two initiatives have had the best wishes from Kenyans and must now work together during this New Deal Constitutional Moment just when Kenyans are suffering a nervous and economic breakdown as a result of both pre and post- Covid-19.
It is is time to amend the Constitution for the better.
Okango is Thirdway Alliance Kenya secretary general