Referendum Bill gives MPs final say on law changes

Parliament has published a Bill to guide the referendum process, amid revelations that MPs will have the final say on any proposed changes to the Constitution before Kenya goes to a referendum.

The Referendum Bill 2019 provides a road map on amending the supreme law, amid expectations that Kenya will eventually make crucial changes on structure of the Executive.

Although the Bill deals with changes through popular initiative, Chair of the Constitution Oversight Committee (CIOC) Ndaragwa MP Jeremiah Kioni said that a draft Bill through popular initiative will go through normal parliamentary processes, and MPs will be free to make any changes.  

With MPs on the driving seat of the process, it means competing political interests can sneak in changes through Parliament. 

“MPs can introduce changes when it comes to Parliament. Any changes to the Constitution are never to be done outside people’s representatives. It was just to make sure the public have a stand on an issue. One of the mistakes being made is to see popular initiative as being an affront to the people’s representatives,” he told the Sunday Standard.

“A popular initiative was not meant to overthrow the people’s representatives. They still have a say,” said Kioni, whose committee sponsored the Bill.

The proposed law effectively removes one of the last hurdles in the way of a referendum at a time when there are reports that the Building Bridges Initiative (BBI) report, likely to recommend crucial constitutional changes, is complete.

The report is expected to, among other issues, tinker with the structure of the Executive, to accommodate competing political interests.

The referendum Bill provides a 14-day time frame within which county assemblies must forward their decisions on a popular initiative draft Bill to Parliament for approval.

This is to avoid a situation where a county assembly can sit on its decision, slowing down the political conveyor belt. The Bill also specifies a simple majority as the threshold for passage of the Bill in the county assemblies.

One million signatures

“If a draft Bill has been approved by 24 county assemblies, it shall be introduced in the two Houses of Parliament within 14 days of such approval…Where a county assembly fails to consider a draft Bill under this section, the draft Bill shall fail and the Speaker of a county assembly shall communicate the failure to consider the draft Bill in writing,” reads the 291-page draft law published on May 8.

Article 257 (1) of the Constitution says an amendment may be proposed by a popular initiative in the form of a general suggestion, or a formulated draft Bill signed by at least one million registered voters.

The proposed referendum law does not give a time frame within which Parliament must consider the Bill, leaving it to the discretion of the House Business Committee to slot it in House business.

“If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the Speaker of the county assembly shall deliver a copy of the draft Bill jointly to the speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it…” reads the Bill.

The BBI process, which is a product of the ‘handshake’ between President Uhuru Kenyatta and ODM leader Raila Odinga is being closely watched, especially as it is thought to provide a power-sharing vehicle for politicians.

Before BBI rallies were halted by the coronavirus pandemic, Opposition leader Raila Odinga had hinted that there would be a referendum in June after the task force had completed its findings and written a report.

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021