Recourse to the people is the only option
What you need to know:
- Probably fully aware of the possibility of subjective self- interest among elected leaders, a proviso was made for circumventing Parliament, should the need arise.
- Kenya hobbles from one problem to the next due to our inability, nay, refusal, to look at problems in the face and enact painful solutions. The post-independence constitutional amendments (mutilations) meant we had to go back to the drawing board.
According to the 1776 American Declaration of Independence, “When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation”.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organising its powers in such form, as to them shall seem most likely to effect their safety and happiness.”
The text of this declaration closely resembles the words and intent of the framers of the Kenyan Constitution in Article 1 (1) in which it was envisioned that “all sovereign power belongs to the people of Kenya … and the people may exercise that right either directly or indirectly through elected representatives.” One such form of exercise of this sovereign power is through a referendum.
Since time immemorial, man has had a say on how he is ruled or governed. So that besides periodic elections to choose his representatives, in many a mature democracy, a referendum remains the ultimate tool in arriving at weighty decisions.
It fundamentally means “bringing back;” that is bringing back the question to the people. Referendum usually constitutes two choices but multiple choice options are not uncommon.
In Australia, a referendum held in 1977 to determine the national anthem allowed citizens four choices. New Zealanders went a notch higher when in 1992, they held a five choice referendum on their electoral system.
Back home, the framers of the constitution allowed an elaborate provision for a referendum.
Circumventing Parliament
Probably fully aware of the possibility of subjective self- interest among elected leaders, a proviso was made for circumventing Parliament, should the need arise.
In Article 257, we are told that armed with one million signatures, one is good to go in initiating a popular (people led) constitutional amendment. We are allowed at Article 257 (2) to proceed on the basis of general suggestions. Thereafter, the promoters are expected to beat down these suggestions into a draft bill.
The thorny issue of the Independent Electoral and Boundaries Commission aside, should Parliament fail to pass a draft referendum bill presented to it through Article 257, the question (s) shall be submitted directly to the people.
The provisions of Article 257 (4) and (5) that mandate the IEBC may be circumvented by forming a constituent college or assembly similar to the one that brought together the framers of the American Declaration of Independence and armed with the dictates of Article 1 (1) that donates a direct right or exercise of sovereign power of the people, the United Nations may be called upon to conduct such a referendum.
When a society faces problems for which its elected leaders seem not able to resolve, recourse to the people is the only option. Of course faltering democracies have a morbid fear of referanda. Our constitution even foresaw a situation where we can have a repeat election in the absence of a clear winner. So much so that the noises about putting the country in an election mood are cheap diversions.
Apart from the obvious benefit of focusing our collective attention on certain issues, referanda are crafted in a manner that brings closure to national debates.
Kenya hobbles from one problem to the next due to our inability, nay, refusal, to look at problems in the face and enact painful solutions. The post-independence constitutional amendments (mutilations) meant we had to go back to the drawing board.
Barring various lacunas, the pussy-footing around cardinal issues such as devolution, the provincial administration and land reforms mean that people must grab back the initiative from the ruling class. If, as in the classical understanding, democracy be rule by the people, then we should not fear a referendum.
Owalo is a management consultant based in Nairobi
