All hopes now pinned on leaders whose vision transcend personal interests

By P Anyang’ Nyong’o

Kenya joins many other societies, which have used referenda to involve the people in decision-making.

A referendum can be held on a single national issue, like the formation of the East African Community, or a restricted legislative issue, like whether national days should be celebrated with holidays or just for a few hours on such occasions.

In 1975, when Harold Wilson was the Labour Prime Minister of Great Britain, his government held a referendum asking the British people whether they could remain part of the European Economic Community. A positive verdict was returned.

In the United Kingdom, there are two types of referenda: pre-legislative and post-legislative. Referanda are, however, not legally binding to governments in the UK and Parliament can at any point reverse legislation approved at a referendum because the concept of parliamentary sovereignty means no Parliament can prevent a future Parliament from amending/repealing legislation. But it is unlikely any government can attempt to change what has been decided by the people through popular vote without resorting to the same vote to make its actions legitimate and acceptable.

In the United States, there are three types of referenda: Petition referenda initiated when people collect signatures to put a specific issue on the ballot of a state, local authority, or even a parish.

Optional referenda when a legislature refers a particular legislation for public approval, and constitutional or statutory referenda where states and localities require certain types of measures be submitted to the electorate for approval. Very often they involve constitutional amendments, bond measures or some types of taxes.

Thus, it has never been lost in the history of democratic governance that representative democracy is not enough: direct or popular democracy through the referendum route is always necessary to ensure that matters which legislatures are not competent to handle are subjected to the direct will of the people. A new constitution is one such issue, and Kenyans are, for the second time since independence, just about to make their own history by voting on a new constitutional dispensation.

Going by the mood of the public the new constitution will no doubt be passed on Wednesday, August 4. What is now vital is what happens the morning after. We need to address the issue of the ‘morning after pill’ even before the act of voting is undertaken. Will the losers accept the results while the winners celebrate their victory as legitimate?

First, referenda are always held under rules of the game, which are set well before they are held. People participate after they have accepted the rules under which the game is played. It is assumed, therefore, that players do not change the terms of reference for the referendum either while canvassing for or against it, or after the results are announced.

On October 7, 2007, the first referendum was held in Costa Rica to approve or reject the Free Trade Agreement with Central America, Dominican Republic, and the United States. It was approved by a minimum number of votes (49,030 votes). Results were 51.62 per cent voted in favour, and 48.38 per cent against it. It is the only free trade area in the world that has been approved on a referendum.

Chile prides itself in Latin America as a country, which has held most referenda, having had at least five referenda since 1925 on national constitutional issues. The voting has always been overwhelming with the positive votes always getting good majorities. But this does not, however, mean that the results have not been contested. This is because Chileans have always expected the ‘Yes’ to win with huge majorities, and not just ‘rule-based’ majorities.

In 1978, for example, after the United Nations protested against Pinochet’s military regime, the country’s military government held a national consultation, which asked the people whether they supported Pinochet’s rule.

The ‘Yes’ vote won with 74 per cent, but Pinochet’s opponents questioned the results mainly because they could not completely trust the process of carrying out the referendum.

In the case of Kenya, the rules of the game have been popularly approved, including a unanimous vote in Parliament on the Proposed Constitution. There does also seem to be a broad acceptance of the Interim Independent Electoral Commission as a competent body to run the process. Hence, like in the case of Costa Rica, the results based on a 50-plus-one per cent majority on the number of votes cast should not raise a problem.

And, unlike the case of Chile, since Kenyans have only had one referendum where a simple majority, the percentage of those accepting, rejected the Proposed Constitution however big, should only be a cause of celebration and not doubt from the losing side.

Referenda are, by their very nature, divisive exercises since very passionate issues are quite often settled through the last court of appeal: the people’s vote. They therefore require a strong sense of nationhood for the losers to live with the results. Any temptation towards parochialism that, in regional matters, can be temptations to irredentism of any kind needs to be guarded against.

Kenya is no doubt drawing towards such a moment on August 4, and all hopes are pinned on leaders whose vision for the nation transcend the personal while anchoring on the aspirations of the majority of our people.

These people have, since independence, hungered for the success of the ‘Second Liberation’. The benefits of this will only be known and realised as the dispensations of the new constitution are put in place after August 4.

—The writer is Minister for Medical Services