A referendum is a sui generis
method of amending the Constitution. A referendum, as one of the instruments for amendment, is reserved for the foundation and buildingblocks of the Constitution. Not every amendment of the Constitution requires a referendum. The question, therefore, is not whether or not Kenya should have a referendum. The question should be whether the foundation and building blocks of the Constitution require any amendment.
The Constitution itself identifies its foundation and its building blocks. There are 10 areas. Only these 10 areas of the Constitution require a referendum before they are amended. These 10 areas are provided for under Article 255 of the Constitution. They are: (1) the term of office of the President; (2) the territory of Kenya;(3) the functions of Parliament; (4) the objects, principles and structures of county government; (5) the sovereignty of the people of Kenya; (6) the independence of the Judiciary, the Kenya National Human Rights, Parliamentary Service, Judicial Service, Revenue Allocation, Public Service, Salaries and Remuneration, Teachers Service, and National Police Service Commissions, the Auditor General and the Controller of Budget. (7) national values and principles; (8) fundamental rights and Freedoms; (9) the supremacy of the Constitution; and (10) chapter 16 that provides for amendment of the Constitution.
Reduce the number
No referendum is necessary to reduce the number of Constituencies and their Members of Parliament. No referendum is necessary to create the office of Prime Minister.
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Though a referendum is necessary to abolish Senate, to reduce the number of counties, to remove the offices of Women Representatives, and to abolish County Assemblies, an audit of the achievements and failures of devolved government should precede any suggested changes to the county governments structure. The reason why the 2010 Constitution made it difficult to interfere with any aspects of county government is because of the ease with which politicians after Kenya’s independence abolished devolved government.
County governments are financed by 15 per cent of revenue collected by government through taxes. There are not financed from estimates of revenue. They are not financed by foreign or domestic debt. Unlike national government, county governments do not receive any share of the domestic and foreign national debt receipts. National government may have pressures on its national budget. County governments are not the cause.
Kenya is benefiting from the disbursements of 15 per cent of collected taxes to county governments. The success of Makueni, and its Governor Kivutha Kibwana speaks to this. It is only 8 years since county governments were established. They should be given more time before they are reviewed or restructured.
The next population census will be carried out in 2019. Population data from that census will be one of the factors that will determine national and county revenue allocation for the next 10 years. It is also one of the factors that will determine the constituency and wards boundaries for the next two General Election. The population census and the boundaries review are therefore very important exercises. They will also both weigh heavily on resources of national government and IEBC.
The political charge and campaigns that will accompany a referendum do not lend themselves to a conducive environment for a population census, population census data extrapolation and reports, and the boundaries review.
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The 2010 Constitution promised women a 33 per cent share in elective and appointive bodies. It also promised persons living with disabilities a 5 per cent share in all elective and appointive bodies. Women and persons living with disabilities should demand for their pound of flesh before their votes are called for again in a fresh referendum. This is their golden opportunity to finally extract what is constitutionally due from them and has been withheld by Parliament and politicians alike since 2010.
- The writer is an Advocate of the High Court of Kenya. [email protected]