Quest for referendum and the pitfalls of BBI

Kenya has made impressive strides in developing democratic institutions by enacting laws that guarantee freedom of expression and transparent governance. But like all other countries, democracy in Kenya is a work in progress.

John Dryzek, author of ‘Political Inclusion and Dynamics of Democratization’ describes why democracy will remain an unfinished business even in more developed countries where ethnic and religious minorities feel disadvantaged due to low representation. The deepening of democratic institutions is, therefore, a journey that can take many years or even centuries. 

Since independence, the Constitution of Kenya has been amended a number of times with the aim of determining the level of inclusion in the participation of democratic governance. Except for the 1982 amendment that introduced the contentious section 2A, turning Kenya into a de jure single-party State, other amendments were meant to deepen democracy and increase inclusion.

The 2010 constitution is the best effort so far to address issues of exclusion through the supreme law of the land. But it appears Kenyans are still yearning for more amendments to ensure an even deeper level of inclusion. Dryzek talks of two types of inclusion: One is in State matters and the other in politics. The issue being addressed by the Building Bridges Intiative (BBI) is the inclusion of all Kenyans in the affairs of the State.

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The problem in Kenya is that there is a perception that issues of the State are dominated by one or two ethnic groups. The process of democratisation has to address how, for example, ethnic minorities can feel equally represented in the decision-making process as dominant groups.

The assumption now is that most people in Kenya are not really represented in the State where it matters most. Therefore, it is easy to assume that even though we are a democracy, not everyone in Kenya feels fully included. This is the ideal Raila Odinga has been fighting for in the past, including efforts through the BBI.

The current clamour for a constitutional amendment started with the handshake between President Uhuru Kenyatta and Raila. The nine-point BBI statement indicated the two leaders want to guide the nation towards a constitutional reform that is expected to transform how we manage our democracy. A committee of eminent persons was selected representing the two sides of the protagonists to get the views of Kenyans on the nine-point BBI statement.  

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The findings of the BBI committee were made public late last year. To be frank, the report has fallen short of expectations. The much-awaited tsunami promised by Raila did not occur. The establishment of a powerful prime minister from the leading political party and confirmed by Parliament would have made it possible for communities from the low populated areas to rise to the post.

The only way the structure of government can be changed is through a referendum. The position of a powerful prime minister is only possible through amending the constitutional clauses in article 255 and 257. It, therefore, looks obvious that Kenya might get a referendum before the next general election. But how realistic would this be?

Maintain inclusivity

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The process towards a constitutional amendment is not as easy as assumed. The BBI is expected to start by going back to the people and raise a million signatures. This process will be followed by presenting the referendum questions to IEBC. Once IEBC ratifies this step, the questions will be sent to all the 47 county assemblies where it is expected that at least two thirds of the assemblies will ratify them to allow the referendum Bill to be tabled in both Houses of Parliament, where at least two-thirds of members must ratify.

Only thereafter can a referendum take place. All these require a bipartisan support. I don’t expect this process to be easy. In the first place, the time is not sufficient. This means the majority of Kenyans must be in support. I foresee a road map infested by sharks if the consultative process is not inclusive and participatory enough. Failure to maintain inclusivity in the referendum process means it is only a matter of time before we start to clamour for another amendment in the near future.

Mr Guleid is the CEO of Frontier Counties Development Council. [email protected]

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