The Constitution must be re-examined every other time to establish whether it meets needs of the society. It is not perfect and that is why the drafter included the mechanisms through which it can be amended.
Article 257 of the Constitution provides for amendment by popular initiative (referendum).
For a referendum to be successful, the promoter of the Bill must first garner one million signatures and submit the same to the electoral commission together with the draft Bill.
After verifying the signatures, the commission submits the Bill to the county assemblies. Once at least 24 of the county assemblies approve the Bill, both Houses of Parliament look at it before it proceeds to a referendum.
That Kenya may be headed for a referendum is not in doubt. One of the questions that remains unanswered is whether our problems can be solved through a constitutional change.
Currently, the referendum debate appears divisive since Kenyans cannot agree on issues proposed for amendment of Constitution of Kenya 2010.
The referendum is pegged on the understanding that the tension created by elections can be reduced with less focus on the presidecy.
There is opinion that the current arrangement falls short of legitimate expectations. Elections have taken the “winner-takes-all” model, while the voter is the greatest loser in the equation. The system should be all-inclusive, even to losers, taking into account the fragility of African democracies.
Clearly, our Constitution has some sections that need to be amended. The only way out of this is an objective discussion on the impending referendum. The Independent Electoral and Boundaries Commission (IEBC) has since certified the Punguza Mizigo Bill sponsored by the Thirdway Alliance party.
The Bill seeks to, among other things, ensure 35 per cent of national revenue from the Treasury goes to counties as well as slash the number of MPs from 416 to 147. It also seeks to strengthen the Senate and devolution. Many believe the Bill will address exclusion and high cost of living.
While this is a good idea, the danger of hurried proposals is that they are not consultative enough. There is need for public participation so that Kenyans can own the referendum.
Besides, the architect of the Bill, Dr Ekuru Aukot faces an uphill task of getting support from at least 24 counties. And this is where politics will play out.
It shouldn’t be lost on us that before the handshake; the opposition was pushing for the Bomas Draft, which proposed a bicameral legislature and dual-executive system, with a prime minister as head of government and president as head of state.
The Building Bridges Initiative is working on something similar. The team is expected to advise President Kenyatta and Opposition leader Raila Odinga on how they should deal with the problems that cause disunity.
Referendum is a likely option.
Constitutional amendments will significantly alter the governance structure. In a country where communities want to see ‘one of their own’ in powerful positions, the changes are expected to ensure stability of our polarised politics.
It is important to note that elections encourage corruption and exacerbate ethnic tensions every election cycle in Kenya. We need to rethink how we design political systems to avert democratic disasters in this era of multi-party politics.
This calls for accommodation of the opposition leader in the political system to promote inclusivity.
The referendum debate should not be clouded with 2022 succession politics and seen purely through political lens. It should be a chance to address the Constitution’s shortcomings.
- The writer is Executive Director, Governance Pillar Organisation. [email protected]
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