County governments will be able to conduct referendums in their jurisdictions but on limited issues touching on their mandate, if the proposed Referendum Bill 2020 is adopted.
At the same time, regarding issues that must be submitted to a referendum if they are to be amended, the bill aligns to the Constitution, which diminishes the role of Parliament in voting for such proposals.
Clause 7(b) of the proposed bill states that proposed amendments touching on the supremacy of the Constitution, the territory of Kenya, the sovereignty of the people, national values and principles, the Bill of Rights and the term of the office of the President, among others, will be subjected to a referendum even if MPs fail to pass the bill proposing the amendments.
Other issues that the Constitution says must be subjected to a referendum to be changed are the independence of the Judiciary, constitutional commissions and independent offices, the functions of Parliament, the object, principles and structure of devolved governments, and the provisions of Chapter 16 of the Constitution.
The Referendum Bill, which the Independent Electoral and Boundaries Commission (IEBC) has shared with the Justice and Legal Affairs Committee of the National Assembly, is still in its early stages of development.
A county referendum, the bill states, will be confined to local issues that consist of county laws and petitions, or “planning and investment decisions affecting the county”.
For a petition to succeed and be subjected to a referendum, the commission proposes that it must have the support of at least 25 per cent of registered voters in the county.
“The principal object of this bill is to consolidate the law relating to conduct of referendums, to provide for a transparent and fair process in order to obtain a clear expression of the will of people …” the draft bill states in the statement of objects and reasons.
For a referendum question to be approved under this proposed law to be valid, the bill proposes that turnout should be “at least 20 per cent of the registered voters in at least half of the counties vote in the referendum” and the amendment to be supported by a simple majority.
“If there is more than one question in a referendum and one question is approved and the other is not, the referendum process shall proceed as though the approved question or questions were the only questions and the disapproved question or questions shall be disregarded,” the bill states.
The bill also opens the way for any person who qualifies to be a voter to petition the conduct, result and validity of a referendum.
Such petitions will be heard by a three-judge bench of the High Court empanelled by the Chief Justice. Such a petition will be heard and determined within six months of the date of lodging the petition.
Amid heightened calls for a referendum, there is no law to guide the conduct of such a vote. Efforts by the defunct Constitutional Implementation Commission (CIC) to have Parliament enact a law to govern the conduct of a referendum did not bear fruit.
In 2016, IEBC developed a bill as it had been requested by Parliament but this, too, did not go far. The justice affairs committee, then chaired by Samuel Chepkonga, rebuffed the commission, telling members that the committee was drafting its own referendum law.
This has yet to happen and, amid the clamour to change the Constitution, IEBC’s fears have been that such a process may hit a brick wall because there is no law in place for this specific task.
As the Building Bridges Initiative (BBI) task force settles down to write its report after the validation hearings of their initial report, there is high expectation that the team will recommend that the country amend several sections of the Constitution. This could likely result in a referendum.
IEBC met the Justice and Legal Affairs Committee in Mombasa on March 7 where, besides the Referendum Bill, they also presented drafts of the Election Campaign Financing (Amendment) Bill and the Independent Electoral and Boundaries (Amendment) Bill.
The Independent Electoral and Boundaries (Amendment) Bill seeks to amend section 36 of the Independent Electoral and Boundaries Act to guide the redrawing of electoral boundaries.
“The purpose of the proposed amendment is to provide for a complete procedure for the delimitation of electoral boundaries and to address identified gaps,” the bill states in the memorandum of objects and reasons.
The bill comes at a time when IEBC ought to have started redrawing electoral boundaries, as stated by commission chairman Wafula Chebukati in February 2020. It means that work may not start any time soon.