It is too early to yield to the clamour for a referendum: Why the agitation?

An intense referendum itch has recently been introduced into the country’s body-politic and Kenyans have been urged to scratch it!

Portrayed as the sole answer to many challenges to the constitutional order adopted only four years ago, Kenyans are being harangued with calls to respond by triggering the popular initiative plebiscite to amend various provisions of the Constitution by petitioning IEBC with support of at least one million signatures.

With the clarion call that referendum must happen wapende wasipende, Kenyans are being presented with a fait accompli, that this plebiscite must take place. Is there good reason for Kenyans to scratch this itch now?

The democratic legitimacy of referendum as the highest level process of structural change is now the leitmotif of our Constitution. Having created a deliberative governance framework underpinned by national values the central tenet of which is public participation, the Constitution, unsurprisingly, endorses the view that a similar popular deliberation, not just at the level of representative institutions, namely Parliament and County Assemblies, must undergird changes to the Constitution.
While a super majority in Parliament is able to alter certain provisions of the Constitution – such as the ongoing attempts by Mr Lelelit of Samburu to re-contour the structure of the equalisation fund in article 204 – only a referendum can sanctify changes to fundamental aspects of the supreme law such as the structure of devolution, sovereignty of the people, Kenya’s territory, among other issues.

RECOURSE TO A REFERENDUM
The assumption made by the drafters is clear: that recourse to a referendum would only be necessitated by the need to alter structural aspects of the Constitution. Other changes to create coherence, address ambiguity and ensure institutional comity can be achieved through Parliament, with the engagement of the public.
This assumption was not uninformed. Rather, it was based on the well-established appreciation that the 2010 Constitution was a compact of intense negotiation and enormous compromise, the arrival of which had occupied the national psyche for well over a decade.

To imagine, then, that the country is being urged on to revisit this product of political social and economic compromises just four years later calls into question either the motivation for previous attempts at constitutional re-crafting or the credibility of our commitments as a people.

While the Wapende Wasipende crowd justifies the need for a referendum on principally the call for increased pesa mashinani, the people are not being given the real picture on the achievements of devolution so far nor the actual source of challenges the devolution enterprises faces.

Article 203(2) of the Constitution which requires that not less than 15 per cent of the national revenue shall be allocated to county governments has already been exceeded by the present administration in both last year’s and current financial year.

While quibbles regarding the exact quantum of these allocations may be raised, the minimum requirement has been exceeded.
While the 2010 Constitution envisioned a phased transfer of functions based on an assessment of capacity, a policy choice by the present administration was made to transfer these functions at once in the interest of respect for sovereignty of both levels of government as well as in the furtherance of equality across all counties.

Given that article 203(2) merely sets the base, nothing precludes current and future administrations from progressively increasing these allocations all the way to the amounts desired by the Pesa Mashinani hordes! But any increase must be matched with increased capacity of counties to absorb such funds.

The report by the Controller of Budget demonstrates the sheer inability of counties to make use of almost 40 per cent of resources allocated in the last financial year, not to mention the wanton profligacy of some county authorities.

This absorptive capacity constraint and accountability gap will not be cured merely by a further increase in funding. If the goal of increased pesa mashinani can, therefore, be realised under the current framework, what function then does an amendment to mandate an increased percentile serve, except to reignite the flagging fortunes of political dinosaurs?

Mr Sing’Oei is the Legal Advisor, Office of the Deputy President