To safeguard our democracy, we must hold a referendum

Prime Cabinet Secretary Musalia Mudavadi says a constitutional referendum must address the recommendations of the Nadco report. [File, Standard]

As Kenya approaches the 2027 General Election, a critical conversation gathering steam is whether our progressive Constitution, promulgated in August 2010, still remains a powerful instrument of change aligned to our nation’s political and socioeconomic transformation journey.

A healthy debate emerging online and in other fora validates how Kenyans across the political divide passionately defend the spirit of the Constitution but also point out a few critical areas that need re-imagining. These include the cost implications to the economy of implementing some of its key provisions, such as the form and means of public participation as currently framed, and the two-thirds gender rule.

Resolving these issues calls for a holistic commitment, devoid of political emotions, personal ambitions, name-calling or sensational conspiracy theories on social media alleging a plot to extend term limits. As I stated a few days ago, a referendum moment is here, and it is inevitable. It is a rational, necessary step to safeguard our democracy, resolve longstanding legal hurdles and ensure fair, inclusive governance.

The first step is to confront the elephant in the room: The looming constitutional crisis that could derail the 2027 elections. The Constitution, under Article 89 (2), mandates the Independent Electoral and Boundaries Commission (IEBC) to review constituency and ward boundaries every eight to 12 years. The last comprehensive review was finalised on March 6, 2012, meaning the window for another review closed on March 6, 2024.

We are now in breach of our supreme law. Without a valid review, the risk of elections being nullified on the basis of outdated boundaries and violation of citizens’ rights to fair representation under Article 81 remains high. Imagine, no boundaries means no constituencies, no wards, and ultimately, no valid election. This is not speculation; it is a legal reality staring at us.

Compounding this is the census deadlock. A credible boundary review requires uniform national population data, but the 2019 Kenya Population and Housing Census for Mandera, Wajir, and Garissa counties were nullified by the Garissa High Court on January 28, 2025, citing significant irregularities in data collection. The court ordered a “mini-census” in these areas by January 2026.

Patching up 2019 data from 44 counties with fresh 2026 figures for the three counties undermines the accuracy and reliability of the data set. Without a constitutional amendment to resolve this, IEBC cannot proceed.

The implication is a potential nullification of the 2027 polls before a single ballot is cast. We risk departing from our proud tradition and world acclaimed history of holding elections every five years since independence.

These issues tie into structural difficulties that stifle growth and fairness. Kenya’s population has grown by over 12 million since 2010, yet Article 89 (1) caps constituencies at 290, preventing IEBC from creating new seats in high population growth areas without amendment. Protected constituencies, spared in 2012 due to special factors like geography or sparsity, now face extinction, threatening representation.

At the county level, the Constitution empowers IEBC to adjust wards, but the County Governments Act caps them at 1,450, limiting flexibility for population surges. These caps trap resources far from the people, undermining devolution’s promise under Chapter 11.

A constitutional review must also address the recommendations of the National Dialogue Committee, which was born out of the post-2022 elections bipartisan talks convened to address protests on electoral justice, cost of living and governance issues. The November 2023 National Dialogue Committee (NADCO) report identifies reforms that only Kenyans can approve via referendum.

Foremost is entrenching the National Government Constituencies Development Fund in the Constitution, to shield it from court challenges deeming it unconstitutional. NADCO further proposes to entrench the National Government Affirmative Action Fund that is managed by woman representatives and create two other funds, a Senate Oversight Fund to support senators’ unique devolution role and a Ward Development Fund for members of county assemblies.

Another key pillar is inclusiveness, which is founded on the two-thirds gender rule that remains unfulfilled, despite progress in women’s representation. Parliament’s repeated failure to achieve this gender balance led to a 2020 advisory from the Chief Justice to dissolve it, a crisis we must avert moving forward.

A referendum offers a recalibration for fairness, not just compliance. To further unify Kenya’s governance structure, NADCO proposes formalising the offices of the Prime Minister and Leader of the Official Opposition. The Prime Minister would coordinate executive functions. This is not about rewarding personalities but institutionalising the PM position in the Constitution for future stability and continuity.

The Opposition Leader would provide structured checks from within Parliament—the institution that houses the people’s elected representatives. This will ensure that rigorous debates are conducted via institutions that can ensure accountability and follow-through.

A 10-point agenda derived from the NADCO report was instrumental in the formation of a broad-based government, established on March 9, 2025 through an agreement signed between President William Ruto and former Prime Minister Raila Odinga. 

The agreement focuses on governance reforms, economic stability and inclusiveness, with full implementation of NADCO as its cornerstone. The referendum proposed for 2027 is essential to enact NADCO’s constitutional amendments, directly supporting the agenda’s goals.

Why hold this referendum alongside the 2027 elections? Efficiency, cost savings and practicality. Separate referenda are prohibitively expensive. IEBC’s budget for the 2027 elections alone is close to Sh62 billion. A stand-alone referendum could add another Sh30-40 billion, straining our economy and stifling our recovery efforts.

A combined referendum and General Election will enable IEBC to efficiently allocate logistics, polling stations, voter register and security costs, while boosting turnout. Higher election turnout means less voter apathy and more voices on reform pathways.