Dilemma as governors, Cord and state separately push for plebiscite

The parallel referendum initiatives by opposition Cord, the Jubilee government and the Council of Governors (CoG) promises to cause a dilemma as the country navigates through uncharted constitutional waters.

It appears to be a unanimous view among lawyers that the number of questions that can comfortably be put to a vote in a single referendum needs to be limited to reduce the complexity. As it is, the Constitution is silent on the matter.

But some of the teams maintained that the possibility of a merger was not on the cards, at least not yet.

Nyeri Governor Nderitu Gachagua who sits in the CoG’s Steering Committee on Friday said the referendum sponsored by the CoG has nothing to do with the issues Cord is pushing for.

“The issues that governors want to be determined at the referendum are being pushed by counties, not parties. Ours is an issue-based referendum owned by the people at the grassroots and the possibility of merging with other groups is not an issue being considered right now,” said Mr Gachagua.

But a strategist with Cord’s Okoa Kenya team who asked not to be named so as not to jeopardise the technical team’s work also argued that the issues the governors have put on the table are not any different from those of the opposition.

“The governors’ and Cord’s issues are likely to be the same. In that case isn’t it prudent to have a single Bill or suggestion on the same issues?” the strategist posed.

Key among the issues Cord’s Okoa Kenya initiative and CoG’s Pesa Mashinani one is to increase the resources that are allocated to the counties from 15 per cent to 45 per cent of the current audited Exchequer Accounts.

Cord also listed governance with the subject of restructuring of the provincial administration central to the question, composition of the constitutional commissions, land reforms, inclusivity and equality, fighting corruption and enhancing security.

The issues have now been consolidated into a draft bill as provided for in Article 257 of the Constitution.

“We are going with a draft bill for constitutional amendment not questions on issues. It means all the issues will be consolidated in the draft bill and presented as a single document to be voted on and that is allowed in Article 257 ,” the Cord strategist told Sunday Nation.

The emotive issue of electoral reforms will be covered under the composition of the constitutional commissions.

“If we say for instance that each constitutional commission should have a maximum of five permanent members, then we shall have killed two birds with one stone. It will mean that the Independent Electoral and Boundaries Commission (IEBC) which has been one of our key concerns will be overhauled to conform to the new constitutional provisions,” Suna East MP Junet Mohammed told Sunday Nation.

According to the Law Society of Kenya chairman Eric Mutua, while there is no limit as to the number of questions, the IEBC has the mandate to step in and break them down.

“When you have many questions, the process becomes complex and very easy to scuttle,” said Mr Mutua.

Similar view is held by Senate Majority Leader Kithure Kindiki who argued that the best way to deal with the issue is to consolidate the issues into a constitutional amendment bill instead of presenting them separately.

“The questions can be as many as possible but the neatest way is to have a bill and let people vote on that bill. Those are legal questions and we may not even get there,” Prof Kindiki said.

PREMATURE

The chairman of the Committee of Experts that midwifed the 2010 Constitution, Mr Nzamba Kitonga, also concurs. But Mr Kitonga believes that the referendum quest is premature.

“My view is that we should wait for the implementation period of the Constitution to be over, which is just next year. It is then the government should call a national conference to audit the Constitution since Kenyans will have identified the good and the bad in the Constitution,” said Mr Kitonga.

Mr Kitonga also rubbished some of the issues Cord wants included in the referendum as “unconstitutional”.

According to Mr Kitonga, the issue of security is not constitutional and the only way to deal with it is to empower and re-organise the security agencies.

The Cord team that is working on the referendum issues consist of lawyers Paul Mwangi, Kethi Kilonzo, former Permanent Secretary Beatrice Kituyi and Muslims for Human Rights (Muhuri) boss Khelef Khalifa.

CoG also unveiled its technical team on Friday that comprises of university don Prof Winnie Mitullah, lawyers Wachira Maina, Apollo Mboya and Issa Mansur, and economist David Ndii.

But some members of the CoG technical committee are also known to have been consulting for Okoa Kenya.

Meanwhile, the Jubilee government has also come up with a strategy team that is tasked with coming up with issues to counter the opposition Cord’s referendum quest.

Prof Kindiki confirmed that the Jubilee government had also formed a team “though issues we want to put out for the referendum bado ziko jikoni (are still being worked on).”

“We have an immutable strategy but we want things to concretise first. For us this is not a referendum but Cord trying to interfere with the Jubilee government and we shall counter them and scuttle them to the four corners of the earth,” said Prof Kindiki.
Gem MP Jakoyo Midiwo said Jubilee’s move was welcome and challenged them to merge with Cord.

“That is the primary reason we want dialogue. My advice to them is that they should come and join Cord’s quest because what we want to do is not a Jubilee or Cord affair but is for the good of all Kenyans,” said Mr Midiwo.

Mr Midiwo also said Jubilee’s rush to counter Cord’s initiative by forming a separate team was an open admission by the government that there are issues that must be sorted out through dialogue.

COLLECTING SIGNATURES SEPARATELY

If the various groups do not merge, the other question is whether each of them will be collecting the million signatures separately and how Kenyans will perceive that.

Merging the three teams, however, appears an uphill task with each not sure of the other’s agenda.
The Cord strategists wondered whether there was a hidden hand to the CoG’s initiative.

“Kenyans will remember that the governors had at one point talked of a referendum to have more resources go to the counties. The initiative fizzled out after they met with the government.

Our concern with the Pesa Mashinani initiative is the gusto with which even party loyalists from URP are now coming out in support of the governors’ referendum quest. Is there an attempt to prop up the governors’ initiative and deflate or water down Okoa Kenya’s?” the Cord strategist posed.

On the other hand, Prof Kindiki claims that Cord and CoG’s initiatives are one and the same.

But Mr Gachagua maintained that the governors’ agenda was not aligned to any political party, but geared towards ensuring devolution is implemented in the spirit and letter of the Constitution.

“The problems facing the people are enormous and history has given us a position as governors that we must set things right and that is exactly what we are going to do,” Mr Gachagua said.

He added, “We do not want anyone to introduce politics into our issues as we only want to deal with issues relating to devolved functions and money following the functions as the Constitution provides.”

Additional reporting by PSCU