Experts: Referendum only possible in March 2016

Yash Pa Ghai: Uhuru has many times flaunted the Constitution

Constitutional experts have poured cold water on the planned referendums by the Opposition and governors, saying the issues they are pushing can be addressed without a national vote.

The experts argue that the proponents of a referendum can draft a petition to impeach President Uhuru Kenyatta for failed leadership in the many issues affecting Kenyans that both CORD and the Council of Governors have raised.

Former Committee of Experts member Ekuru Aukot claimed the myriad challenges facing Kenya today are as a result of failed leadership by the Jubilee administration, adding that the leadership can be changed without going through a referendum.

Dr Aukot blamed Members of Parliament for not using the constitutional provision of impeaching the Head of State even after he had allegedly breached the Constitution.

“There is a provision in the Constitution that allows for a member to initiate a Motion of impeachment if the President has seriously violated the Constitution. The issues being raised are not as a result of the Constitution, but failed leadership on the part of national government,” said Aukot.

Aukot said Opposition MPs have failed to table a Motion of impeachment over the issues they are raising in the ‘Okoa Kenya’ campaign, citing ‘tyranny of numbers’ as an impediment to such a move.

He said any member can table a Motion and wait to see the outcome of the process instead of giving up without a fight.

“Let somebody come up with the Motion and if it fails, it shall be on record that a Motion for impeachment was tabled,” he said.

His counterpart Yash Pal Ghai alleged that Uhuru has many times flaunted the Constitution, a situation that in law warrants his impeachment.

WATERED DOWN

Prof Ghai, who chaired the Constitution of Kenya Review Commission (CKRC), claimed that both President Kenyatta and the National Assembly have sabotaged the Constitution, adding that devolution was watered down by MPs in a retreat in Naivasha, Nakuru County.

“The President has sabotaged this Constitution many times. Yet there is nobody raising an issue. The National Assembly has breached this Constitution many times and if the trend continues, we will have a very useless document. Impeachment is possible,” said Ghai.

Ghai said the Constitution can be amended even without a referendum as envisaged in article 257 of the Constitution and warned that unless politicians and other leaders change their attitude towards its implementation, the politics around the supreme law could be far from over.

Section 257 of the Constitution states that an amendment to the Constitution may be proposed by a popular initiative signed by at least one million registered voters, which may be in the form of a general suggestion or a formulated draft Bill.

Clause three of the same section states that if a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill.

Ghai said CKRC proposed the time frame for a referendum can only be six months but that provision was changed when MPs met at a retreat in Naivasha in the run up to the promulgation of the Constitution in 2010.

“There has been a lot of misunderstanding about the Constitution on referendum. I’m really feeling for CORD and governors because the time frame set in the Constitution is tedious. You can reduce the work load through this process by just impeaching the President,” he said.

While addressing a workshop in a Nairobi hotel yesterday, the experts said a plebiscite can only be possible earliest March 2016.

‘Okoa Kenya’ campaign Committee of Experts member Anthony Oluoch said the referendum push by CORD is not political, but a popular initiative by like minded Kenyans.

“It can not be that any time serious issues are raised about insecurity, corruption and the high cost of living the answer Jubilee gives is that we defeated you in the election. These are issues that require answers, not reminding people how they lost in an election. Why do you keep on reminding us? Does it mean you are doubting yourselves?” asked Oluoch.