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Governors, opposition leaders laud senate’s referendum as Jubilee shuns move

By Roselyne Obala | September 27th 2015
Selected Senate Committee on Constitution Review Chairman Kipchumba Murkomen (speaking) and his Committee members Mutula Kilonzo Junior and Billow Kerrow (left) at Parliament Buildings after tabling report on amendments to Constitution 23-09-15 PHOTO BY MOSES OMUSULA

The push for a constitutional change appears inevitable, going by the number of institutions advocating a referendum despite Jubilee Government’s opposition.

Governors and the Opposition have already kicked off the process and developed the Constitutional of Kenya 2010 (Amendment) Bill, 2014 and the Okoa Kenya Bill.

The Senate is the latest entrant in this spirited crusade to amend the five-year-old Constitution. “We consulted with the various stakeholders like the Council of Governors, independent commissions, county assemblies and we are still open to consultations,” said Senator Mutula Kilonzo Jnr, vice chairman of the select committee on Constitutional and Legal Review.

He added, “This is a popular initiative and if we work within provided timelines, we might be through to the referendum by early January or late August in 2017.”

Senators argue that the hallmark of the new constitutional order is the system of devolved governance, which has consistently come under threat by a bicameral Parliament and the Executive.

In a move to protect its turf, the Senate notes that devolved governance and bicameralism has seen many successes but also brought to the fore a number of challenges of constitutional design and architecture that require reform so as to secure and strengthen devolved units and promote harmony.

Defined in law

A nine-member committee formed by the Senate to audit the Constitution and identify the offending clauses that hinder the smooth implementation of devolution, has zeroed in on seven key amendments, expected to elicit mixed reactions from various government institutions and leadership.

Elgeyo Marakwet senator Kipchumba Murkomen chaired the committee that also recommended the General Suggestion for the draft Constitution of Kenya (Amendment) Bill, 2015 contained in their report and approve its publication.

“The House approves the processing of the Bill by way of popular initiative (referendum) and approve the appointment of a select committee to spearhead the referendum,” reads the report tabled in the Senate for adoption. Murkomen issued a notice of motion, to enable the House adopt the report and set stage for constitutional change. Governors and the Opposition have welcomed the proposals to amend the law and called for further consultation with key stakeholders to incorporate all challenges.

But the referendum push fronted by the Senate is already rattling leaders allied to the Government, who have termed it an exercise in futility. Governor Isaac Ruto (Bomet) who is also Council of Governor (CoG) committee chairman spearheading their referendum agenda, has lauded the Senate’s initiative and pledged to engage it widely on the matter.

“I associate myself with the senators’ findings. It is similar to the governors’ findings on the clauses to be amended and entrench devolution,” said Ruto on phone.

He continued, “The emerging issues are similar and must be clearly defined in law. We cannot continue relying on the goodwill of the Government of the day; as witnessed with the Jubilee Government, devolution must be protected and properly anchored in law.”

The governor exuded confidence that the National Assembly will back the Senate to fast track the process, even as he identified some omissions in the report.

Ruto affirmed that the governors will consult the Senate on the matter, especially on some functions like the management of natural resources; forests and water and management of education infrastructure by counties.

The Coalition for Reforms and Democracy (CORD) has welcomed the Senate’s proposals and called for a merger to save the public huge costs in funding parallel referendums. “We agree in principle with the Senate suggestions, especially to clearly define the role of the two Houses of Parliament.

National Assembly has been misused by the Jubilee Government to undermine the Constitution through legislation, the Senate being an Upper House will offer an alternative voice,” said ODM Political Affairs secretary Opiyo Wandayi (Ugunja).

He continued, “Tyranny of majority will no longer have its way in one House of Parliament.

We however hope the Senate will engage the Opposition with a bid to harmonising Bills. Parallel referendums will be too costly to tax payers.” Peter Kaluma (Homa Bay, CORD) also applauded the Senate, saying the initiative is the way to go and challenged his colleagues to support it.

Bi-partisan manner

“In all democracies with two Houses of parliament, Senate is inevitably the upper House and we need to make a true upper House. This will make the Senate the referral House, to correct mistakes done by the National Assembly or petitioned by the public instead of the courts,” said Kaluma. He continued, “ I appeal to my colleague who might be opposed to the amendments to approach it in a bi-partisan manner. Lets treat this initiative with good faith.”

But Kikuyu MP Kimani Ichungwa (TNA) and TNA chairman Johnson Sakaja (nominee) faulted the Senate’s move, saying time to amend the Constitution is not now, since its implementation has not been completed.

“Lets give it time for full implementation then we do a social economic audit of its progress first and decide as a country what needs to be changed. Otherwise the current clamour by the Senate is ill-timed and ill-advised as it seems motivated by a singular agenda of power struggle between the two Houses of Parliament,” said Ichungwa. Sakaja argued, “No one wants a referendum now. We are too close to the elections; some of these questions, which are reasonable can be put to vote also on the day to day. However, we require consensus building, some of the proposals are unacceptable.”

Ichungwa censured the Senate’s initiative, terming it a desire to stage a constitutional coup to make it more powerful than the National Assembly. “They are better off focusing their energy on providing meaningful oversight to counties that have devolved corruption and plunder of public resources,” he said. He warned, “The senators need not engage in an exercise to amend the Constitution to serve every sectarian interest.” But Sakaja in poking holes in the proposed amendments, concurred with the senators that clarity is needed in terms of roles to ensure no House prefects another but added that some do not make sense.

“Both Houses considering all the Bills will be tedious, time consuming, slow legislative process and bureaucratic. National Assembly represents people’s interests while the Senate represents corporate entities, called counties.

We can only agree on certain legislation to be done jointly,” said Sakaja.

He added, “I support the independence of county assemblies to promote accountability but opposed to Parliament establishing two service commission. It will be expensive, instead lets find a way of ensuring the representatives from the two Houses at the Parliamentary Service Commission work harmoniously.

Committee comprising senators Murkomen (Elgeyo-Marakwet), Kilonzo Jnr, Kiraitu Murungi (Meru), Naisula Lesuuda (nominated), Muruiki Karue (Nyandarua), Billow Kerrow (Mandera), James Orengo (Siaya), Boni Khalwale (Kakamega) and Halima Abdille (Nominated) maintained that since the Articles cited are protected, a referendum is inevitable.

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