The Independent Electoral and Boundaries Commission (IEBC) announced to a somewhat surprised country that the Thirdway Alliance had presented more than 1 million signatures, thus meeting the threshold for deliberations to amend the Constitution of Kenya.
Known as the Punguza Mzigo Initiative, the proposed amendments seek, among others things, to introduce a one-term 7-year presidency, reduce the size Parliament, currently 416, to 147, convert the existing 47 counties into units for election to the Senate and National Assembly and address gender inequality in representation and ensure Kenyans elect one man and one woman from each of the 47 counties into the National Assembly.
The basic rule is that Parliament, defined as the National Assembly and the Senate, and acting together can amend the Constitution. Exceptions to this rule exist and are based on the content of the intended amendment. The Constitution lists 10 types of amendments which Parliament cannot undertake on its own without the participation of the people through a referendum. Tying the amendment of aspects of the Constitution to a referendum is meant to protect those aspects from unconsidered or casual amendment, because they are considered too important to be trifled with.
The categories of amendment that require a referendum include if the amendment in question will affect the supremacy of the Constitution, alter the bill of rights or change the term of the presidency. Also, an amendment seeking to vary the objects, principles and structure of devolved government must be subjected to a referendum. Other protected provisions relate to the independence of the Judiciary and the commissions and independent offices, the sovereignty of the people, and the national values and principles of the Constitution.
Two of the amendments sought under Punguza Mzigo require a referendum. The first is the amendment that seeks to vary the term of the presidency. Currently, the presidential term is five years for a maximum of two terms. It is proposed to make it a single seven-year term. A second proposed amendment which attracts a referendum is one that seeks to vary the functions of counties as electoral units and would change the “objects, principles and structure of devolved government.”
Where a referendum is needed in order to amend the Constitution, there are two pathways to the referendum. The first would be to process the bill through the two houses of the legislature, with each house approving the bill by a special two-thirds majority. Since, ordinarily, a bill can be enacted by a simple majority the requirement for a two-thirds majority is already a higher hurdle that a bill seeking to amend the constitution must clear. Twice before, attempts to amend the Constitution to address gender equality provisions have failed because they were unable to meet the higher two-thirds threshold.
If a constitutional amendment did not affects at least one of the ten entrenched areas discussed above, it would take effect once two thirds of each house of Parliament passed and the president gave assent to the bill. If, however, the bill affected the entrenched provisions, its enactment by the two houses would only trigger a requirement for the president to advise the electoral commission to call a referendum on the bill. Thus, this is one of the ways in which a referendum can be held.
The second method for calling a referendum is referred to as a “popular initiative”, and is the one that Punguza has invoked. It requires the gathering of at least 1 million signatures to establish a threshold of seriousness. According to the IEBC, Punguza has done that.
What will follow is that each of the 47 counties will now be required to debate the proposals contained in the Punguza initiative within three months after the date it was submitted by the Commission. If a county assembly approves the bill, the speaker of the county assembly is required to deliver a copy of the bill the speakers of the two houses of Parliament, with a certificate that the county assembly has approved it. If a bill has been approved by a majority of the county assemblies, it will be introduced in Parliament. Each house of Parliament will have a chance to consider the bill and can pass or refuse to pass it.
Whether or not each house passed the bill is immaterial to how it is treated after that. In all cases, the bill will be subject to a referendum.
It seems therefore that Kenya will now have a referendum. The only way in which the country can avoid a referendum on the Punguza initiative is if its proposals fail to meet the approval of a majority of the counties. In that case, the matter shall lie there and there will be no referendum. Whether or not the issues contained in the bill will eventually see the light of day is not the question at the moment.
The possibility of a referendum will change the nature of politics. In particular, the rumoured referendum by the Building Bridges Initiative will now be dancing on a plane that the Punguza Mzigo has established. One possibility is that the political establishment will seek to put Punguza in its place by engineering county assemblies to reject the proposals. To do so, there will have to be trade-offs with county governments that are currently sulking after a season of hardball politics over national revenue sharing.
- The writer is a lawyer and the executive director at KHRC. [[email protected]]