Referendum law key to guide amendment of the 2010 Constitution

In 2015, while working for the Constitutional Implementation Commission, we pleaded with Parliament to enact a referendum law to govern the process of amending the Constitution. In its element, Parliament filed this away to deal with more pressing projects. Four years later, it is becoming obvious that the absence of a referendum law may lead to a constitutional quagmire. On one hand, there is no law that sets out the procedural issues that will arise in the referendum processes.

The Elections Act concerns itself with referenda arising out of a parliamentary initiative and gives little guidance on the procedures relating to referenda arising from popular initiatives. On the other hand, the Constitution and the Elections Act law do not address several substantive issues including what is to be done if several popular initiatives with conflicting proposals are presented to the IEBC at the same time.

Two events this week affirm the nature of the problem. On Tuesday, the Council of Governors announced that they will propose amendments to the Constitution through a popular initiative dubbed “Ugatuzi.” The first challenge will arise if the proposals by the Ugatuzi initiative and the ongoing Punguza Mizigo, or any other subsequent proposal end up with competing propositions on the same issue. For example, on enhancement of the amount due to county governments the Ugatuzi initiative has so far indicated it will propose 45 per cent allocation to counties while the Punguza Mizigo Bill proposes 35 per cent. It is possible that we will have a BBI proposal for constitutional amendment. Assume for argument that to make it attractive to the public it raises the amount due to counties to 25 per cent. If the three Bills are approved by the County Assemblies then they would be required to be presented to the people through a referendum in their approved form.

Article 257 which makes provisions for amendment of the Constitution through referenda is very brief. It only provides that if a Bill is approved by a majority of the county assemblies then it will be subjected to a referendum organised by the IEBC. The Constitution does not provide for what happens if different proposals for amending the Constitution contain proposals that conflict with each other. Once approved, they must all be presented to the people as different independent questions which people either accept or reject. Because the proposals are presented as separate Bills, the challenge would arise if all the proposals are accepted in the referendum since accepting one does not mean rejecting the other. What would then be implemented if the three proposals were accepted?

The second issue relates to the procedural rules concerning the approval of a popular initiative Bills by county assemblies. The provisions of the Constitution addressing this matter are also very brief and only require the Bill to be considered by an Assembly and if approved, to be sent to IEBC. It is not clear what the approval margins are. Since this is a constitutional amendment Bill, which in Parliament requires a 2/3rds majority, should the threshold for approval by the County Assemblies be 2/3rds or a simple majority? The procedural challenges became even more obvious from my adopted county of Kirinyaga where the Punguza Mizigo Bill was defeated on a technical basis. Clearly in the absence of a referendum law, the bill can only be dealt with under the standing orders of the Assembly. So, when Dr Ekuru says the Bill must be tabled and debated and cannot be defeated on a technical basis, what is the basis of his proposition, in the absence of a referendum law or other legal guidance on the question?

Finally, the Constitution gives no timelines within which Parliament must consider a popular initiative Bill once it is approved by the county assemblies. Parliament can decide to kill such Bills by just refusing to debate them. Is this what the Constitution intended? One can list other challenges that may arise if this issue is not sorted out through a comprehensive referendum law. Parliament must pass a law to address these challenges before they come to haunt us.