Why holding referendum may be pipe dream before 2022

Lack of a legal framework, high costs and a chocked calendar could see Kenya hold a referendum on election date.

Whereas the constitutional amendments calendar enters a crucial phase next week when a parliamentary committee is expected to conclude a public participation report ahead of the second reading of the IEBC Act (Amendment) Bill, which reduces the number of IEBC commissioners from nine to five, a legal framework that provides details of conducting referendums in compliance with the Constitution is still in the works.

The departmental committee on Administration of Justice is in the process of preparing a Referendum Bill that will align plebiscites to the Constitution.

The reduction of the number of commissioners unlocks the current stalemate where the nine-member IEBC is functionally crippled for lack of legal quorum of five members after resignation of four commissioners who are yet to be replaced.

The Constitutional Implementation Oversight Committee (CIOC) says legal and functional hiccups around institutional preparedness of IEBC are consequential to anticipated referendum and boundaries review, not to mention the 2022 general election.

“Time is not on our side and much needs to be put in place when Parliament is focused to debate and agree, undistracted by electioneering campaigns. For among amendments CIOC is proposing is to conduct a referendum together with the next general election in 2022. The rationale for this includes reduction of costs and to avoid having two heavy political undertakings in the space of three years that could overwhelm the electorate,” said CIOC chair Jeremiah Kioni. Mr Kioni said consultations and enquiries by the CIOC indicate the referendum could cost upwards of Sh15 billion, and a similar amount for  implementation.

Although some political actors have been calling for a referendum, the last budget statement made no provisions in the 2019/2020 financial year.

In an exclusive interview, the Ndaragwa MP said the proposal to reduce commissioners from nine to five unlocks the stalled reforms process on three levels: “Besides reducing the cost of running IEBC, it reduces the legal quorum to three out of five, thereby granting the current three commissioners mandate to hit the ground running to execute the envisaged electoral reforms, including preparing for boundaries review in 2023 or 2024,” Mr Kioni said.

If the amendments sail through the second and the third readings, the current commissioners – Mr Wafula Chebukati, Prof Abdi Guliye and Mr Boya Molu – will constitute a quorum to transact business.