The world watched the historic independence referendum in Scotland last week when Scots decided by a majority vote that they did not desire to break away from the United Kingdom.
In August 2010, the people of Kenya were called upon to decide in a referendum whether to adopt a Proposed Constitution which had been passed by the Kenyan Parliament. The majority of Kenyans voted in favour of the new Constitution and it became law. South Sudan was born after a referendum, and Zanzibar avidly followed the Scottish separatist vote as it is toying with the idea of breaking away from Tanzania.
Through the ongoing Okoa Kenya and Pesa Mashinani campaigns, the Coalition for Reform and Democracy, and the Council of Governors, respectively, have been rallying for amendment of certain provisions of the new Constitution through a referendum.
A referendum is a legal means of deciding on emotive and sometimes contentious national issues.
In New Zealand, for instance, there was a referendum to decide whether parental corporal punishment should or should not be allowed!
The word "referendum" has its origin in the mid 19th century from the Latin word "referre" which simply means 'refer'. The legal significance of a referendum in the Kenyan laws is profoundly important.
What then is the place of the mechanism of a referendum in Kenyan law? A referendum is expressly provided for in Chapter 16 of the Constitution - dealing with amendment of the Constitution- and is heralded as a democratic process to bring about change.
A proposed amendment to the Constitution requires a referendum if it relates to any of the matters listed in Article 255 (1).
The matters listed in that Article are: the supremacy of the Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance; the Bill of Rights; the term of office of the President; the independence of the Judiciary and the commissions and independent offices to which Chapter 15 applies; the functions of Parliament; and the objects, principles and structure of devolved government.
There are two ways of starting the process of amending the Constitution in respect of the foregoing matters. The process may be started by either parliamentary or popular initiative. As to parliamentary initiative, the process is started in Parliament.
A Bill to amend the Constitution is introduced in either House of Parliament by a member of that House. It behoves Parliament to publicise a Bill that has been introduced and facilitate public discussion about it.
If the Bill is passed by Parliament through the support of at least two thirds of the members of each House, it is submitted to the President.
Upon receipt of the Bill, the President becomes duty-bound to request the Independent Electoral and Boundaries Commission (IEBC) to conduct a national referendum for approval of the Bill.
As to a popular initiative, the process is started by the people. Provided that the proposed amendment is supported by the signatures of at least one million registered voters, the promoters of the popular initiative need to reduce the proposed amendment into a Draft Bill and send it together with the supporting signatures to the IEBC for verification.
If verified by the IEBC, the draft Bill is then sent to the 47 County Assemblies for consideration. If supported by the majority of the County Assemblies, it is sent to Parliament.
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If at least two-thirds of the members of each House of Parliament pass the Bill, it is referred to the President who then requests the IEBC to conduct a referendum to approve it.
The Bill is deemed to have been approved by a referendum if at least 20 per cent of the registered voters in each of at least half of the 47 counties vote in the referendum, and the amendment is supported by a simple majority of the citizens voting in the referendum.
If the Bill is approved by the people in the referendum, the chairperson of the IEBC certifies the same to the President after which the President assents to the Bill and causes it to be published, and the Bill becomes law.
The phrasing of the question to be put to the electorate is of crucial importance and can impact on the result of the referendum.
In the UK, the phrasing will normally be stated in the legislation proposing the referendum, although the Independent Electoral Commission has a role on the intelligibility of the question.
A referendum question in Kenya is framed by the IEBC and referred to Parliament for approval. The Commission has also the discretion to assign such symbol for each answer to the referendum question as it may consider necessary.
While advocates of referendums argue that the process permits greater citizen involvement in democratic decisions, the procedure has been subject to the criticism that most citizens lack the time, resources or expertise to make an informed assessment of the issues, thus making the process a waste of national resources.
Perhaps this explains why a section of Kenyans has expressed dissatisfaction with provisions of the Constitution which they overwhelmingly approved in a referendum just 12 months ago. Massive civic education is a prerequisite for an informed decision in a referendum.
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