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Why Kenyans will most likely hold a referendum

By Demas Kiprono | December 6th 2019 at 12:00:00 GMT +0300

Aerial view of Bomas of Kenya where Kenyans and delegates followed proceedings during the Building Bridges Initiative (BBI) report launch. [John Muchucha/Standard]

Since the BBI report was launched last week, several politicians and political pundits have pronounced themselves as to the way forward with regards to its implementation.

Legislators allied to the deputy president have posited that BBI’s fate lies with Parliament whilst ODM leader Raila Odinga and his supporters insist the document can only be directly deliberated and endorsed by Kenyans.

In many ways, both camps are right and wrong to some extent. The crux of the matter lies in articles 255, 256 and 257 of the constitution, which set out how the document may be amended. The drafters of the constitution were cognisant that from time to time, it may need to be changed to better guide the nation.

Under the Kenyan law, the constitution can be amended under three circumstances:

The first is a people-driven process, also called ‘popular initiative’. Here a draft petition containing the proposed changes is published with the hope that it will be endorsed by at least one million registered voters via signing of a petition.

If the IEBC certifies the bill is competent and duly supported, it forwards it to county assemblies for consideration. If the bill is endorsed by a majority of the counties, it is tabled before both houses of Parliament and successfully amends the constitution if it garners simple majorities in both.

The second way is by a parliamentary constitutional amendment bill from either the National Assembly or the Senate. Such a bill succeeds if it garners the high threshold of over two-thirds of votes in both houses.

It is worth noting that the popular initiative and parliamentary amendment paths only apply if the proposed amendments do not touch on certain fundamental issues listed in Article 255(1) of the constitution. Clearly, the drafters were deliberate that in the event any person or persons tried to amend the constitution regarding hot button issues, then the sovereign people of Kenya had to be consulted through a referendum.

The issues listed include amendments touching on territory of Kenya, separation of powers, role of constitutional commissions, the Judiciary, Parliament, presidential term limits, objects, principles and structure of devolved governments, the bill of rights, and national values and principles of governance.

To me, the contents of the BBI that Kenyans need to pay attention to are the proposals to create a Health Services Commission (HSC), grant Nairobi County special status, increase monies dedicated to devolution to 35 per cent of the national budget, and formulation of a charter of rights and responsibilities for the people of Kenya. It can be argued that these issues trigger the referendum clause.

For instance, the creation of a HSC to preside over human resource issues of the health sector may be a good move to bring sanity in the sector. However, it may be problematic since counties have an unambiguous mandate of providing health services, including hiring of health workers directly from the constitution.

For this to change, HSC must be constitutionally entrenched and protected, and for it to have legal fiat over HR issues in the counties. Its creation arguably expands the list of constitutional commissions listed under Article 248 of the constitution. It is clearly outside what is contemplated in the one hand, and eats into the structure, objects and principles of devolution - thus requiring a referendum.

The proposal that Nairobi be accorded a special status as capital city to allow the national government the means to provide services and facilitation necessary to maintaining it as a capital city and a diplomatic hub may also be problematic. It can be strongly argued that this is a fundamental altering of the structure of Nairobi as a co-equal county among the other 47 counties. It can be claimed that this is outside what is contemplated under the constitution, thereby a fundamental amendment altering the objects, principles and structure of devolution.

What if tomorrow, another constitutional amendment is proposed to give special status to Mombasa, Narok, Turkana and Uasin Gishu because the county is where the main sea port is situated, home of the world famous Masai Mara, location of our oil mines, and the bread basket of Kenya respectively?

Other issues of concern are whether the proposed Kenyan Charter of Rights and Responsibilities may affect the bill of rights, which is protected under the constitution and places a duty on the government to respect, promote, fulfill and protect.

The spirit of the BBI is one of inclusivity, accountability, personal responsibility and patriotism. However, if we do not change our rhetoric, sycophancy, narrow mindedness, and bigotry, we will waste the BBI moment and sink deeper into the problems identified in the report.

Demas Kiprono is a constitutional and human rights lawyer. [email protected]


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