LAW CHANGE

Why BBI proposals can't evade the referendum route

The amendment must go for a referendum to get the approval in a final public participation process

In Summary

• A detailed reading of the BBI draft bill  submitted to the 47 county assemblies for consideration reveals that the road to referendum is unavoidable.

• This is how BBI proposed amendments relates to the matters that shall require a referendum for approval by the people through a vote.

ODM leader Raila Odinga receives the BBI report from task force vice chairman Adam's Oloo at the Kisii State Lodge on October 21. 2020.
ODM leader Raila Odinga receives the BBI report from task force vice chairman Adam's Oloo at the Kisii State Lodge on October 21. 2020.
Image: ANGWENYI GICHANA

Since the launch of the BBI report and subsequently the Constitution of Kenya (Amendment) Bill, 2020, some political pundits, legal scholars, leaders and academicians have argued the draft bill may not require approval and enactment through a referendum.

However, the law is explicit that a proposed amendment to the Constitution shall be enacted and approved by a referendum, if the amendment relates to the supremacy of the Constitution; territory of Kenya; the sovereignty of the people, the national values and principles of governance; the Bill of Rights; the term of office of the President; the independence of the Judiciary and commissions and independent offices; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions of Chapter 16 of the Constitution.

The 'magic' word here is 'relates'. In simple English, this word means make or show a connection between. A detailed reading of the BBI draft bill  submitted to the 47 county assemblies for consideration reveals that the road to referendum is unavoidable.

Therefore in my humble opinion, this is how BBI proposed amendments relates to the matters that shall require a referendum for approval by the people through a vote.

Bill of Rights; Any amendment to the Constitution that relates to the Bill of Rights shall proceed to a referendum. Clause 5 of the Bill proposes to amend Article 31 (Privacy) to incorporate the right for the protection of personal data of citizens as a Bill of Rights. This amendment has a direct connection with the Bill of Rights as provided for in chapter four of the Constitution of Kenya, 2010 and shall require a plebiscite to approve.

The national values and principles of governance; BBI proposals have largely incorporated aspects of national values and principles of governance in their draft bill. The bill proposes a raft of amendments that relate to a sustainable economic system that shall guarantee sustainable development, responsibility of citizens that cultivate national unity, participation of people in their governance, political inclusiveness in the national executive and equity in resources distribution at the County and national level of government. These amendments must go for a referendum for them to be approved.

The independence of the Judiciary and the commissions and independent offices to which Chapter 15 applies;  Clause 9 of the Bill proposes to amend Article 88 (Independent Electoral and Boundaries Commission) which is a constitutional commission in chapter fifteen to bar persons who have, within five years preceding an election, held office or stood for election as President, Deputy President, county governor or a Member of Parliament from being members of the Commission.

Further, the proposed amendment mandates IEBC to ensure a list of candidates nominated by a political party for an election comply with the principle that not more than two thirds of the nominated candidates shall be of the same gender.

The amendment removes the jurisdiction of handling disputes arising from the nominations of candidates by political parties from IEBC and vest it in the Political Parties’ Disputes Tribunal so as to achieve speedy adjudication of such disputes and streamline the mandate of the Commission.

The amendment in Article 250 (Composition, appointment and terms of office) also proposes to alter the composition of all the constitutional commissions by proposing the maximum number of commissioners to be seven and not nine as currently constituted.

The amendment in Article 248 (Application of Chapter) proposes to include the office of the director of public prosecution as part of independent office under chapter fifteen of the Constitution.

Clause 44 of the Bill proposes to establish in a new Article 172A (The Office of the Judiciary Ombudsman) in the Constitution which shall be responsible for handling complaints on the judicial process from the members of the public.

Clause 55 of the Bill proposes to amend Article 215 (Commission on Revenue Allocation) to reduce the number of members nominated by political parties represented in the Senate from five to two so as to balance the representation from the two Houses.

The amendment to the Commission of Revenue Allocation also provides for two members to represent county governors and one person nominated by members of a statutory body responsible for professional regulation of accountants.

These amendments relate to constitutional commissions as established in Chapter Fifteen and therefore must be approved by the people in a referendum.

The objects, principles and structure of devolved government; Clause 54 of BBI draft bill proposes to a amend the structure of devolved government by establishing Ward Development fund in Article 207A which shall be used as the primary unit of accelerated development. The Ward Development Fund is proposed to comprise of at least five per cent of all the county government's revenue in each financial year and ensure equitable distribution and development in the wards of money allocated or collected by the county government.

Clause 50 of the Bill proposes to amend Article 203 (Equitable share and other financial laws) to expand the criteria for determining equitable share to include the need to eradicate corrupt practices and wastage of public resources, the need to ensure the attainment of the economic and social rights guaranteed under Article 43 and ensure the average amount of money allocated per person to a county with highest allocation does not exceed three times the average amount per person allocated to a county with the lowest allocation

The amendment further increases the percentage of funds allocated to county governments from at least fifteen to at least thirty-five percent so as to strengthen devolution and ensure that county governments have adequate funds to carry out their operations and meet the objects of devolution. These amendment largely relates to the structure of devolution and therefore must go to the people for approval in a referendum.

The functions of Parliament; Clause 12 of the Bill proposes to amend Article 96 (Role of the Senate) to enhance the oversight role of the Senate on matters relating to all county revenues and their expenditures as a function of Parliament in protecting the Constitution and promoting democratic governance. The existing provision only mandates the Senate with oversight role on the national revenue allocated to the county governments and does not expressly extend such mandate to counties’ own source of revenue and borrowings and their expenditures. This proposal is expected to enhance accountability of counties in matters of public finance and enhance service delivery to the people.

With the above proposals in regards to the BBI, the amendment must go for a referendum to get the approval in a final public participation process . This is only after it gets the nod of the majority of the county assemblies and irrespective of the decision of the bicameral house.

The bill shall then be subjected to a vote in a plebiscite.

The writer is a governance expert, political consultant and the secretary-general of Thirdway Alliance Kenya