Since the launch of the BBI report and subsequently the Constitution of Kenya (Amendment) Bill, 2020, some of the political pundits, legal scholars, leaders and academicians have argued that the BBI draft bill may not require approval and enactment through a referendum.
The Constitution of Kenya, 2010, is explicit that a proposed amendment to the Constitution shall be enacted and approved by a referendum if the amendment in a bill relates to the supremacy of the Constitution, territory of Kenya, the sovereignty of the people, the national values and principles of governance, the Bill of Rights; the term of office of the president and the independence of the Judiciary and the commissions and independent offices to which Chapter 15 applies. Others are the functions of Parliament, the objects, principles and structure of devolved government or the provisions of Chapter 16.
In my humble opinion, this is how BBI proposed amendments relates to the matters that shall require a referendum for approval.
Bill of Rights: Any amendment to the Constitution that relates to the Bill of Rights shall proceed to a referendum. Clause 5 of the Bill proposes to amend Article 31 (Privacy) to incorporate the right for the protection of personal data of citizens as a Bill of Rights. This amendment has a direct connection with the Bill of Rights as provided for in Chapter Four of the Constitution and shall require a plebiscite to approve.
The national values and principles of governance: BBI proposals have largely incorporated aspects of national values and principles of governance in their draft bill. The bill proposes a raft of amendments that relate to a sustainable economic system that shall guarantee sustainable development, responsibility of citizens that cultivate national unity, participation of people in their governance, political inclusiveness in the national executive and equity in resource distribution at the county and national level of government. These amendments must go for a referendum for them to be approved.
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The independence of the Judiciary and the commissions and independent offices to which Chapter 15 applies: Clause 9 of the bill proposes to amend Article 88 (Independent Electoral and Boundaries Commission), which is a constitutional commission in Chapter 15 to bar persons who have, within five years preceding an election, held office or stood for election as president, deputy president, county governor or a member of Parliament from being members of the commission.
The amendment in Article 250 (composition, appointment and terms of office) also proposes to alter the composition of all the constitutional commissions by proposing the maximum number of commissioners to be seven and not nine as currently constituted.
The amendment in Article 248 (Application of Chapter) proposes to include the office of the director of public prosecutions as part of independent offices under Chapter 15 of the Constitution.
Clause 44 of the Bill proposes to establish in a new Article 172A (The Office of the Judiciary Ombudsman) in the Constitution, which shall be responsible for handling complaints on the judicial process from the members of the public.
Clause 55 proposes to amend Article 215 (Commission on Revenue Allocation) to reduce the number of members nominated by political parties represented in the Senate from five to two so as to balance the representation from the two Houses. These amendments relate to constitutional commissions as established in Chapter 15 and therefore must be approved by the people in a referendum.
The objects, principles and structure of devolved government: Clause 54 of BBI draft bill proposes to amend the structure of devolved government by establishing Ward Development Fund (WDF) in Article 207A, which shall be used as the primary unit of accelerated development. The WDF is proposed to comprise at least five per cent of all the county government's revenue each financial year and ensure equitable distribution and development in the wards of money allocated or collected by the county government.
The amendment further increases the percentage of funds allocated to county governments from 15 to at least 35 per cent so as to strengthen devolution and ensure that county governments have adequate funds to carry out their operations and meet the objects of devolution. This amendment largely relates to the structure of devolution and therefore must go to the people for approval in a referendum.
With the above proposed amendments, approval through a referendum is the only route available after it gets the nod of the majority of the county assemblies irrespective of the decision of the bicameral house.
Mr Okango is a governance expert and Secretary General of Thirdway Alliance Kenya