The push and pull on whether the country should hold a referendum alongside the 2022 General Election, before the polls or avoid it altogether has been reignited by the gazettement of a bill on how to conduct the vote, which now awaits tabling in the National Assembly once it resumes its sittings on June 2.
The Referendum Bill, 2020 by Ndaragwa MP Jeremiah Kioni, who chairs the National Assembly’s Constitutional Implementation and Oversight Committee (CIOC), seeks to have a vote held together with the General Election “to minimise costs” and proposes measures to bridge the existing legal and constitutional gaps.
“If there has to be any referendum, then it must be held on the same date with a General Election to save money and avoid too much politicking,” Mr Kioni told the Sunday Nation.
Kwanza MP Robert Pukose had a similar proposal but Kioni’s bill takes precedence.
“If we were to have a referendum now, it will cost us a lot of money, which the country does not have. The most important thing with this bill is to stop any politician who wakes up any day and says we need a referendum now and as a country we start moving around wasting time,” said Mr Kioni.
This proposal is not likely to go down well with proponents of the Building Bridges Initiative (BBI) led by ODM leader Raila Odinga and Siaya Senator James Orengo, who, before the first case of Covid-19 was reported in Kenya in mid-March, called for a referendum as early as July.
Kirinyaga Governor Anne Waiguru noted that the gazettement of the bill is an important development in the process towards a possible BBI referendum.
“The bill clarifies referendum processes to fill gaps in the current law. Our hope is that the law is quickly passed so that no procedural challenges arise once the BBI proposals are ready for a public vote,” she said.
National Assembly Minority Leader John Mbadi said the timing of the gazettement is good so that the law is enacted before the BBI process starts.
“We need this law like yesterday. Once it is brought to the House, we shall fine-tune it to ensure that it goes with the aspirations of Kenyans,” he noted.
The referendum law ought to have been enacted long ago but the dilly-dallying of the Independent Electoral and Boundaries Commission (IEBC) and lack of initiative from the Justice and Legal Affairs Committee (JLAC) of the National Assembly caused the delay.
The IEBC was to draft the bill and submit it to JLAC, which oversees the agency.
Upon detecting the gaps in the Constitution and the Elections Act of 2012 and with the IEBC and JLAC dragging their feet, Mr Kioni saw an opportunity to draft the bill that would later be owned by his committee.
The bill, he said, provides a framework on how a referendum should be conducted.
To trigger a referendum, you need to be supported by at least one million signatures of registered voters across the country.
Article 257 of the Constitution provides for amendments through a popular initiative, but has gaps.
The Elections Act also provides on how a referendum should be handled but it is not adequate.
However, the gaps in the two sets of laws may have largely contributed to the 2015 collapse of the Okoa Kenya referendum proposal by the Coalition for Reforms and Democracy, then led by Mr Odinga.
A similar fate befell the Punguza Mizigo Bill of 2019 by Thirdway Alliance Party of Ekuru Aukot.
Attempts by the JLAC in the 11th Parliament at addressing the gaps were muzzled by the political heat at the time.
JLAC’s then chairman, former Ainabkoi MP Samuel Chepkong’a, wanted to amend the Elections Act to include a referendum, but the proposal was shot down.
The Referendum Bill, Mr Kioni said, will guide the IEBC on how to verify signatures. The way the IEBC goes about that process currently has led to uncertainty among interested groups.
There is also lack of clarity on the voting threshold when it is taken to the county assemblies for consideration.
“The question has always been whether it should be adopted by a simple or super majority. There must be clear outcomes that come from the county assemblies,” the Ndaragwa MP said.
For instance, in the case of the Punguza Mizigo Bill, there was no clarity on whether it was to be submitted to county assemblies within a specific period.
Mr Kioni’s proposal also seeks to streamline the process. For instance, if there are many proposals to amend the Constitution, the bill seeks to consolidate all of them and decide which one takes precedence.
Currently, there is no legal or constitutional provision to address such. The 2010 referendum was a success because it was guided by the Constitution of Kenya Review Act that guided the processes overseen by the Constitution of Kenya Review Commission.
The bill will be introduced in the National Assembly when it resumes its sittings on June 2, after a long recess that was largely utilised to scrutinise the 2020/21 budget estimates.
The scrutiny was done at the committee level as the Budget and Appropriations Committee conducted public participation in selected parts of the country as required by the Constitution.
Mr Kioni’s committee, in considering the bill after introduction in the House, will engage the public to collect views that will include memorandums from political parties and other stakeholders.
“This is crucial so that anytime we need to have a referendum, it is not a guesswork,” he said.
The gazettement of the bill effectively breathes new life into the BBI, but the test now lies in how the bill is fast-tracked as well as how the country deals with the Covid-19 crisis, which has brought the world to a standstill, with public gatherings - including BBI rallies - banned as part of restrictions to curb its spread.
But the latest development is likely to arouse political action between two amorphous political factions in the Jubilee Party - Kieleweke, coalescing around President Uhuru Kenyatta, and Tangatanga, which is allied to his deputy William Ruto, which are pulling in different directions on the BBI.
While Kieleweke supports the BBI, Tangatanga has chosen to oppose it.
But even with the Covid-19 pandemic, the BBI steering committee that is distilling the report launched last November at the Bomas of Kenya never went home.
Its members have been working and they are expected to produce their final version, recommending which issues are to be dealt with through policy, administratively, and Acts of Parliament and which ones should go to a referendum.
Speaking in Naivasha on Saturday, ODM leader Raila Odinga said the BBI was only on “half time” and awaiting the end of the coronavirus crisis for “reggae” to resume.
At the altar of the BBI process is a proposal to expand the Executive by creating the post of prime minister with two deputies, among others.
With the bill likely to generate political heat, Kisumu West MP Olago Aluoch warned the public against reading too much into it, especially the timing of the publication.
Mr Aluoch said it’s a normal parliamentary process. “Parliament, as a lawmaking institution of any country, can deliberate on anything. Kenyans should not be worried because it has been in the works for quite some time and when the time comes we shall deliberate on it and see areas to improve,” said Mr Aluoch, a member of JLAC.
Once tabled in the National Assembly, the CIOC will have it subjected to public participation before it comes up for the second reading.
The bill, Mr Aluoch said, seeks to refine the process upon which a referendum can be held.
To partly cure the legal gaps amid the Punguza Mizigo Bill, National Assembly Speaker Justin Muturi and his Senate colleague Ken Lusaka on November 22, 2019 published in the Kenya Gazette guidelines that made it mandatory for the publication of status report on how county assemblies have considered the bill upon expiry of the three months’ consideration period.
The two Speakers, in identifying the procedural difficulties, noted that if not cured, they will see any referendum process drag on.
One of the key difficulties was the delivery of the draft bill to the county assemblies on varying dates by the IEBC and the lack of a definite timeline within which the assemblies are to submit their resolution to the two Speakers of Parliament.
There is also the difficulty of the Constitution’s not obligating rejecting county assemblies to file any return to Parliament by way of a certificate.
Information from the electoral commission shows that county assemblies started receiving the Punguza Mizigo Bill on July 19, 2019, with the Kajiado County Assembly receiving it last, on July 29, 2019.
Under Article 257, which Speaker Muturi says was not crafted in vain, the 47 county assemblies are required to consider a referendum bill within three months.
If a county assembly approves the bill within three months after the date it was submitted by the IEBC, its Speaker is required to deliver its copy to the Speakers of the two Houses jointly with a certificate of approval.
However, to the extent that Article 257 (5) of the Constitution does not give a definite timeline within which county assemblies’ Speakers must deliver their resolution of passage of the bill, that is a procedural difficulty that may legnthen the process.
In view of this provision, Mr Muturi says it is difficult to know whether the 21 county assemblies considered the Punguza Mizigo Bill within the prescribed three months’ period and the nature of the resolution they passed.
“The two Speakers can only rely on and verifies information formally transmitted to them by the county assemblies. Until and unless they indicate their respective decisions on the Bill, the hands of the two Speakers remain tied,” says Muturi.
BBI TASK FORCE
Article 257 of the Constitution allows any citizen to originate a proposal to amend the constitution upon gaining the support of the majority the county assemblies.
But the publication of the Referendum Bill has not been well received by a section of Kenyans who see the move by the CIOC as being insensitive to the plight of a majority of Kenyans who are suffering from the economic consequences of the coronavirus pandemic.
“I hope this Referendum Bill, 2020 is fake news,” said Law Society of Kenya (LSK) President Nelson Havi following the publication of the bill in the Kenya Gazette No. 87 of May 15.
Some allies of the Deputy President have also taken the opportunity to accuse President Uhuru Kenyatta of focusing more on political positions by allegedly pushing for the publication of the bill at the expense of dealing with the coronavirus pandemic and the worsening economic conditions of Kenyans as a result of the virus.
The debate over a referendum has dominated the country’s politics since former political rivals President Kenyatta and ODM leader Odinga met for the infamous 'handshake'.
The formation of the BBI task force has often been seen in this light – as way of formalising the quest for constitutional amendments to create more executive positions.
Kenyans could also be given an opportunity for early voting if it passes. Section 23 of the bill gives the IEBC the discretion to make provisions for “voting under special circumstances” for those classified as essential service providers as well as participation in a referendum by Kenyans in the diaspora.
“The commission may make special provisions for Kenyan citizens who are out of the country or who would not be able to vote on the voting day because of essential duties, patients in hospitals, persons admitted in sanatoria or homes for the aged and similar institutions, persons who lead nomadic life on account of vagaries of climate, physically disabled persons, expectant mothers and persons in lawful custody,” the bill states.
While early voting has been entrenched in other democracies, not just for essential service providers, it could pose a logistical nightmare for IEBC and this will be compounded by the trust deficit that afflicts the country’s politics.
Unlike in a General Election, where IEBC has seven days within which to declare results, the bill proposes 48 hours for the commission to wrap up the process after the voting closes.
For a proposed amendment to the Constitution, it needs to be ratified by at least 20 per cent of registered voters in at least 24 of the 47 counties, and that the amendment be supported by a simple majority of the citizens voting in the referendum.