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Referendum will cure all contested BBI issues

By Nderi Ndiani | March 27th 2021
IEBC Chair Wafula Chebukati when he appeared before the joint sitting of National Assembly and Senate Legal committee on Justice and legal affairs on the submissions on the Kenya Constitution of Kenya (Amendment) Bill 2020 at the Senate chambers, Parliament buildings, Nairobi. [Elvis Ogina,Standard]

In his submissions before the joint committee of Parliament recently, IEBC Chairman Wafula Chebukati argued that in proposing creation of 70 constituencies the Constitutional Amendment Bill, 2020 goes against the Constitution, which bestows the commission with exclusive power of delimitation of boundaries. Should the Bill pass in its current form, it would be unconstitutional, he contended.

His stance is premised on the text of the Constitution, but it will prove challengeable on account of the doctrine of popular sovereignty should the Bill be approved in the upcoming referendum. Sovereignty denotes the right to have absolute and unlimited power either legal or political within the territory of State. Article 1 of the Constitution vests in the people of Kenya all sovereign power, which they can exercise directly or through their democratically elected representatives. Often, people donate this power to state organs including IEBC.

Implying absence of restraint, sovereignty grants the people unfettered power to make, replace or amend a constitution. However, it is important to distinguish authorship of a constitution and approval. Constitutions world over are drafted by lawyers, politicians and other interest groups with myriad considerations. Literally, the people as a collective do not engineer constitutions or amendments.

Nonetheless, constitutional referendums are an expression of people’s sovereignty and approval of the First Amendment, popularly known as the BBI Bill, will forestall any challenge to it. Not even the Supreme Court has legal competence to rule on constitutional amendments or indeed, on a constitution approved by people in compliance with the existing procedural and substantive legal framework of the State.

The Constitution itself jealously safeguards the sovereign right of the people under Article 2(3). The validity or legality of the Constitution is not subject to contest by or before any court or state organ. By way of precedents, courts have restated this fundamental constitutional principle. A constitutional amendment approved by the people cannot be itself unconstitutional. The Constitution — the supreme law of the state — represents the will of the people who intended to cloth themselves with the power to amend its provisions. Interestingly, while procedural legality in constitutional making is a key consideration for which the BBI Bill must pass, any procedural flaws will be cured by approval of the Bill in the referendum.

The people will have pronounced themselves on the issues, thereby obliterating any procedural hitch. Exercise of sovereign power will legitimise the process. Whether the amendment will yield desired legitimacy must be of concern to the Bill’s proponents. The people must be persuaded to approve the amendments through the vote. The political class must convince all players to work in concert and apply all strategies to ensure the referendum attracts an approval rate close or beyond the 68.5 per cent attained by the referendum that birthed the current Constitution. The proponents must be wary of political risks and loss of moral authority should the Bill be rejected.

There is need to enhance deliberative democracy through comprehensive and credible civic education that prioritises even the lowest levels of societal organisation. Through this, the people will have a conversation on how they wish to be governed. The Bill, if approved, will reconfigure the executive, parliament and judiciary by introducing the office of the Ombudsman and some independent commissions with far-reaching governance implications. As a necessity, ordinary Kenyans must comprehend the intended constitutional amendments and the re-imagined state.

Kenya is not a parliamentary sovereignty and the people have absolute say on amendments through popular initiative. Parliament is merely a conveyor belt. Whether it approves or rejects the Bill, the latter must be subjected to a referendum. The joint committee’s preoccupation with the legality or constitutionality of the Bill is valueless and at its best, an academic exercise for parliament has no power to vary or amend the Bill regardless of the weight of submissions made before it. The passage of the Bill at the referendum will spell a death knell to any legality or constitutional challenge to it. Only another referendum can address such issues. At this juncture, we can only allow Kenyans to exercise their sovereign right in the best way they know-how. 

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- The writer is an advocate of the High Court of Kenya   

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