The absence of a law to guide the referendum process was among the many issues that sank the Constitution of Kenya (Amendment) Bill 2020 on Thursday.
In their ruling, the five High Court judges found that the Bill birthed by the Building Bridges Initiative (BBI) was launched when there was no legislation governing the process leading to and the conduct of a referendum.
“A declaration is issued that in the absence of the legislation or legal framework to govern the collection, presentation and verification of signatures and conduct of a referendum in the circumstances of this case renders the attempt to amend the Constitution of Kenya through the amendment Bill 2020 flawed,” presiding judge Joel Ngugi read the court’s decision.
The judges noted that Parliament had acknowledged the apparent vacuum and had moved to propose the required legislation to address the gaps.
This was in reference to the separate versions of a Referendum Bill sponsored by two National Assembly Committees.
The Constitutional Implementation Oversight Committee (CIOC), which is chaired by Ndaragwa MP Jeremiah Kioni, fronted the Referendum Bill, 2020 in June last year.
The Justice and Legal Affairs Committee (JLAC), currently chaired by Kangema MP Muturi Kigano, has its version – the Referendum (No. 2) Bill, 2020 – which was tabled in Parliament by Baringo North MP William Cheptumo.
At the moment, the JLAC version, which was tabled first, is at the committee stage, with CIOC Bill still at the First Reading stage.
The National Assembly speaker Justin Muturi ruled that the JLAC proposal be given priority after the CIOC and JLAC failed to develop a consolidated Bill as advised by the speaker.
In his ruling issued in February this year, Muturi found that the JLAC proposal had resulted from a consultative process between the committee and the Independent Electoral and Boundaries Commission (IEBC) dating back to 2015.
“Should the Bill sponsored by JLAC be withdrawn by the mover or get lost at any stage, the House will result to considering the Bill sponsored by the CIOC in the published form. This would be a last resort,” ruled Muturi.
As the dust settles on Thursday's ruling, Kioni faults the courts and Parliament, to some extent, for the current state of affairs.
Kioni believes that Parliament dragged its feet in enacting a referendum law.
“We should have processed this Bill much earlier. As a committee, we thought of a framework as the BBI Bill was processed. The House Business Committee should explain why it did not prioritise our Bill earlier," Kioni said.
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He, however, said Thursday’s court ruling disregarded to the prevailing realities.
“The Constitution lists the necessary principles for conducting a referendum and it is the nitty-gritty that needs to be tidied up,” he said, terming the BBI process as one that captured the imagination of Kenyans.
"Kenyans must know that they have the sovereign right to say how they want things to be done. The judges should have cautioned the applicants for going to court too late. You cannot sit on your rights.”
Both the JLAC and CIOC Bills prescribe the process of conducting a referendum, even as the CIOC proposal restricted itself to amendments resulting from a popular initiative.
As stipulated in the Constitution, both Bills state that a popular initiative shall be backed by at least a million registered voters.
As ruled on Thursday, IEBC will be required to verify the signatures through a proper framework.
The JLAC Bill further proposes that not more than a third of those who sign up shall be from one county.
“Voters in at least 24 counties shall be represented,” reads the JLAC referendum Bill in part, which also makes it mandatory to publish the names and signatures of those who support a draft Bill.
Both Bills had seemingly foreseen the likelihood of a multi-choice referendum.
“Each question to be determined during a referendum shall require the voter to select an answer that is either “yes” or “no”,” reads the Kioni Bill
The JLAC Bill, however, falls short of the judges’ verdict that each proposed amendment would be a separate question as it only allows that a proposed initiative may be challenged by another in the form of separate draft Bills.