By Kamotho Waiganjo
The calls for consensus building on the Proposed Constitution prior to the referendum are positive, as long as they are made in good faith and are not a malevolent attempt to delay or even scuttle the process.
There is no doubt that the last thing that Kenya needs is another polarising referendum. It is also important to remember that if the draft becomes the new Constitution, even the Nays will need to be active participants in building constitutionalism, which is the next major project. No constituency is more critical in this process than the Church. Long after the political excitement has waned, the village priest will still have his audience in funerals from Monday to Friday, then officiate in weddings on Saturday and end the week on the pulpit on Sunday. The last thing a new constitutional order needs is a Church which, seeing no opportunities to ventilate its views, opposes the document from its conception. That will significantly compromise the process of transformation promised by the constitution, to the detriment of the whole nation. For that reason, whatever can be done to reach acceptable agreement without jettisoning the reform journey needs to be supported. However, options presented for consideration must be workable, must not lead to delays, more contention and increased divisiveness. That is a luxury that this nation can ill afford.
It is in this context that the proposal by Deputy Prime Minister Uhuru Kenyatta must be interrogated. Even ardent supporters of the DPM must have been disappointed when it appeared he was becoming ambivalent on the draft. As one of the drivers of the process in Naivasha, more definite leadership was expected of him. It was therefore refreshing to read in the media his proposal for a multiple choice referendum. In principle, this option presents a possible way of bridging the growing gap between the ‘Yes’ and the ‘No’. It opens the possibility of having the document affirmed in its entirety by a large majority of Kenyans while at the same time flagging some key contentious issues for further renegotiation after the referendum. It is an attempt to answer to the skepticism, which has greeted promises that the contentious issues can be amended after the document is passed. It gives such promises legal teeth. It gives us an opportunity to differentiate between legitimate ‘No’ positions and reactionary ones whose intention is to block the reform agenda.
The problem with the multiple choice referendum is that if a credible process of determining the key contentious questions is not arrived at quickly, it can become an avenue for opening Pandora’s box and placing roadblocks on the process.
The assumption this far is that there are only four contentious issues on which a separate vote can be held. Once the door is opened, I suspect many more will come from the woodworks. But this is a matter the political establishment, the Church and other disgruntled constituencies can urgently negotiate before the Attorney General publishes the Proposed Constitution. If a maximum of ten issues can be isolated as requiring further deliberation after the referendum, Kenyans can be asked to vote in support of the draft generally but be allowed to express reservation on the contentious issues. The law can then require that the reserved issues, if they achieve a set threshold, be resolved through a time bound process after the referendum. Can Parliament raise the numbers needed for the necessary constitutional amendment? I have my doubts. Is it an option worthy of a second look? Definitely. If no consensus can be reached on this proposal by the time the AG publishes the draft, we will need to move on with it ‘as is’ so we can bring this process to an end. Please register to vote today, all centres are open.
—The writer is an advocate of the High Court.
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