NAIROBI: I have read, with interest, Prof Nyongo’s article in the Standard on Sunday of December 13, 2015 in which he elaborates on the merits of Okoa Kenya’s initiative on constitutional amendments.
Prof Nyong'o, in his usual clarity, premised his article on the proposition that the Okoa Kenya draft Bill is the surest route to amending the Constitution.
As Prof Nyong'o correctly observes, the Okoa Kenya draft Bill covers issues that require a referendum in order to be effective as well as other matters that may be dealt with without undertaking a referendum.
As was observed in 2005 and in 2010, a referendum is both a constitutional requirement (in the process of constitutional change) and also a political contest that has little to do with the issues at hand.
As we prepare for the challenges that a referendum poses, we should be honest and clear to present for the plebiscite only matters that are mandatory and essential under article 255 (1). There are many good reasons for this. Conducting a referendum on a multiplicity of issues poses a challenge to the voters and the electoral body.
Experience has shown that voters do not always have the capacity or information to make informed decisions on complex, multiple issues and may make ill-informed decisions based on partial knowledge of the matters for determination or on the basis of unrelated factors such as political party affiliation.
Further, it cannot be overstated that the ordinary voter does not have the know-how to appreciate the bigger picture of how different issues inter-relate. In its substance, a referendum is ordinarily initiated to tackle single issues one by one without concern to this larger canvass.
In presenting to the voter many issues for analysis, the complexity of the arguments and technical detail could get lost, thereby receiving an answer that does not necessarily relate to the gist of the question.
For the electoral body, the framing of the questions and gathering of responses on several questions is problematic. For this reason a referendum should only deal with those issues on which it is mandatory.
The Okoa Kenya draft Bill promoters should isolate those matters that are capable of amendment without a plebiscite so as to reduce the load on the ballot paper and make the processing of the vote feasible and achievable. This is really because in ordinary terms, a referendum should attract a ‘NO’ or ‘YES’ answer. It cannot call for the expression of opinions or arguments.
Yet there are three other issues that should be presented for debate and possible constitutional amendment. The first is the method of undertaking referendums. Secondly, the constitutional threshold for a referendum. Thirdly, the vacuity in a situation where a draft bill is passed through a referendum but fails to obtain the constitutional parliamentary support.
We should learn from the fact that in many countries, questions that require a referendum are presented during a general election so that voters give their opinion as they vote.
In this way, you reduce the cost of the exercise and obtain a high voter turnout for the referendum question. The fact that a referendum is held during a general election will attract more voters, which will further legitimise the results.
On the question of the threshold, article 255 (2) provides that a referendum shall stand approved if at least 20 per cent of the registered voters in each of at least half of the counties vote in the referendum and that those voters return a simple majority in support of the questions.
This threshold is miserably low. In reality, amendments on the constitution, even on those provisions that embody the fundamental issues that define the bedrock of the constitution, is fairly easy. On the registered number of voters, as they stand, a political party can campaign and obtain the support of as few as nine hundred thousand voters to change the Constitution.
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Why is it necessary to relook at the threshold for constitutional change? We admit that the Constitution is the source, the jurisprudential fountainhead from which all other laws flow. For this reason, it must be protected from partisan, short-term interests for amendment. Yet the Constitution is not intended to be immutable.
The constitution of India, enacted in 1950, has for example been amended more than one hundred times. In South Africa, there have been sixteen constitutional amendments since 1996. The USA has been more conservative.
In more than two hundred years, the constitution has been amended only twenty seven times, the first eleven amendments that form the Bill of Rights, having been undertaken within four years of its promulgation.
I posit that in the long run it is evident that Parliament needs to take a neutral bi-partisan position on the matter of the referendum so as to command leadership on these critical issues.
In a viciously divisive environment existing then, the IPPG demonstrated that Parliament can rise to the occasion to salvage the country from an acrimonious political contest. Today, the country needs similar leadership.