Orange Democratic Movement leader Raila Odinga has embarked on a four-pronged approach to hasten the referendum process in the face of opposition to the Building Bridges Initiative (BBI) that he says is Kenya’s best governance bet.
Following revelations that the government has not budgeted for the plebiscite, Mr Odinga’s team wants to save face and assure its anxious support base that “nobody can stop reggae”.
Mr Odinga has used the musician Lucky Dube’s tunes at BBI rallies to declare that the initiative borne of his handshake with President Uhuru Kenyatta two years ago is unstoppable.
Top on the Odinga team’s priorities is a push to have the Garissa Senator Yusuf Haji-led BBI steering committee hasten its work and hand in a report as early as the end of this month or next month at the latest.
Second, it wants the team, which handed its report to Mr Kenyatta and Mr Odinga in November, to present a validated report along with a dispatch ready to be submitted as a referendum bill.
The team’s third magic bullet is the people. The Sunday Nation has learnt that the team is mobilising its bases to gear up and plan to collect a million signatures as soon as the BBI team hands over its report.
The Odinga team is also ready for its fourth move to ring-fence the referendum move at a moment’s notice and marshal international support for funds.
Senate Minority Leader James Orengo is leading the push to hold the referendum as soon as June. In an interview, the Siaya senator dropped the June date but insisted that a plebiscite “is still very feasible this year”.
He said the Haji panel should come up with a report plus a draft bill, after which the collection of signatures will start in earnest.
The task force’s term ends in June, a period Mr Orengo said is the maximum time it can take, not the minimum.
“The Haji steering committee can release the report with a draft bill and we hit the road immediately,” he said.
“And as it stands, getting a million signatures is not difficult.”
National Assembly Majority Leader Aden Duale is the head of a group that has poured cold water on the possibility of a referendum in 2020, and has tonnes of reasons. The first is what he calls immovable deadlines set by the Constitution.
He cites the legal provision of 90 days between the time a constitutional amendment bill is first read to the second reading. The same timeline applies to the Senate once the National Assembly deal with it.
“Noting that both Houses of Parliament must consider and pass a bill to amend the Constitution, it would appear one would require at least 12 months. The process would therefore even be longer if a bill passed by Parliament proposes an amendment on the matters contained in Article 255 of the Constitution which would require approval vide referendum,” Mr Duale said.
But Mr Orengo, a senior counsel who led a battery of lawyers that won the 2017 Supreme Court presidential petition, thinks Mr Duale has misread the law.
“The only provision for the 90-day period for public participation is when it is by parliamentary initiative. In the popular initiative we are seeking, Article 257 does not make any mention of such a provision,” he said.
Apart from the set timelines for a popular initiative process — a path Mr Odinga says it should take — one must collect at least one million signatures and submit them for verification by the Independent Electoral and Boundaries Commission.
If approved, IEBC hands the document to the 47 county assemblies, which will have three months to decide on it.
Should more than half — or 24 — pass it, it is handed over to Parliament.
If supported by a majority of lawmakers in the two Houses, it is submitted to the President, who then asks the IEBC to conduct a referendum within 90 days of Parliament’s decision.
The law does not state how long the President should take in making this communication to IEBC.
The Constitution demands a referendum for any issue relating to the terms of office of the President, functions of Parliament, the independence of the Judiciary, supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, national values, the Bill of Rights as well as the objects, principles and structure of the devolved government.
This means that even if the process were to start in June when the BBI steering committee’s term ends, the earliest Kenyans can talk about a plebiscite is next year, if the other processes with no fixed timelines are rushed, according to Mr Duale.
Mr Orengo disagrees: “Because it will be by popular initiative and it touches on issues that must go to a referendum, the decision of Parliament is not binding. While county assemblies have been given three months to discuss the bill, they can do it in far less time.”
Mr Duale also cites lack of a referendum law. He gives the example that there is no clarity on what the verification of signatures actually means.
In 2016, the IEBC rejected a drive by the opposition to amend the law, saying only 891,598 signatures of the 1.6 million submitted were authentic. Last year, the commission okayed a push by Dr Ekuru Aukot’s Thirdway Alliance, saying it hit the one million mark. The bill failed because it was not supported by more than 24 county assemblies.
Mr Duale says the law is not clear on whether county assemblies can alter or amend the bill during debate on it or how long it should take for the bill to be transmitted to the two Houses once passed by a majority of the assemblies.
But the biggest obstacle the plebiscite push faces, Mr Duale says, is the funding. Just days ago, it was revealed that the IEBC budget had not factored in a referendum. ODM chairman John Mbadi, secretary-general Edwin Sifuna and political affairs director Opiyo Wandayi believe all is well. For the 2010 referendum, the budget policy statement placed aside Sh9.9 billion for the 12.6 million registered voters at 27,689 polling stations to cast their ballots. There are 19.6 million voters served by 40,883 polling stations.
“The matter of the referendum is settled. It is a discussion of ‘when’ and not ‘if’ it will be held. Schemes by reactionary elements that want to scuttle it will be defeated,” Mr Wandayi said.
Mr Mbadi told Kenyans not to be distracted by the policy statement released by the National Treasury and instead prepare for the vote.
“What we have is just a policy statement. It is still possible to allocate funds, though this has ceilings,” he said, adding that referendum funds can be sourced locally or internationally.
“We have always had support from the international community. They support the handshake and the BBI.”
“If Raila and Uhuru were invited to the US to speak about the handshake, what can stop us from getting assistance from the international community?”
On timelines, Mr Mbadi said it would take only two or three weeks to collect signatures and have the bill in place.
“We can give 90 days for verification. If they take the maximum period, we will need another three months for the county assemblies to validate it. The referendum can be held in August, September or October,” he said.
This assertion, however, ignores the place of Parliament in the process.
Mr Orengo said funds for the referendum can be borrowed, citing the 2013 General Election “when Kenya had to borrow”.
“The referendum can cost the country only Sh2 billion since it is just a ‘yes’ or ‘no’ question. It cannot cost as much as what is used to hold a General Election,” Mr Mbadi said.
“Money cannot stop us from holding a referendum.”
To address the possibility of disruptive referendum politics close to elections, the Jeremiah Kioni-led Constitution Implementation Oversight Committee is mulling a proposal to have plebiscite questions voted on during the General Election.
This way, Kenyans do not have to spend money to conduct plebiscites in between the five-year election period, he said.
“After we are done with BBI, we need to constitutionalise the idea that we only hold a referendum as one of the items to vote on during the General Election. This will ensure we are not in perpetual election mode. Kenyans should only vote on the referendum questions when they are voting in their leaders,” the Ndaragwe MP said.