Raila-Ruto talks: Referendum looms after stakeholders' proposals

National Dialogue Committee co-chairs Kalonzo Musyoka (left) and Kimani Ichung'wah at the Bomas of Kenya, September 2023. [Dennis Kavisu, Standard]

Kenyans are likely to hold a referendum if suggestions made by different stakeholders to the National Dialogue Committee in the past two weeks, coupled with political interests, are in the final recommendations.

Of the five thematic areas, all stakeholders were required to present memorandums on, two required constitutional amendments.

In two weeks, stakeholders including the Law Society of Kenya, the Election Observation Group (ELOG), Amnesty International Kenya and the National Council of Churches of Kenya, made sweeping recommendations covering a wide spectrum.

Chief among these proposals was auditing the 2022 presidential election, restructuring the Independent Electoral and Boundaries Commission (IEBC), boundaries delimitation, cost of living, establishing state offices including the office of the leader of the opposition, preventing political interference, and implementing the two-thirds gender rule.

Speaking on the last day, UDA Secretary General Cleophas Malala rooted for the positions of official leader of the opposition and of Prime Cabinet Secretary in the Constitution.

The ruling party also called for entrenching the National Government Constituency Development Fund (NG-CDF), the Senate Oversight Fund, the Affirmative Action Fund and two extra funds, the Ward Enterprise Fund and the Ward Equalisation Fund to harmonise the roles of MCAs with that of MPs and achieve equalisation.

“The roles of an MCA are similar to those of a member of the National Assembly and therefore if these privileges are given at the national level, they should be replicated at the county level. These funds will help the MCAs fulfil the promises and pledges they made during campaigns,” said Malala.

Ruling coalition

According to the ruling coalition, a proposed solution to address the myriad challenges facing counties involves bolstering the authority of MCAs. This empowerment would come in the form of an additional oversight fund, designed to ensure effective checks on governors and safeguard the autonomy of MCAs, shielding them from gubernatorial influence.

Others who support creation of opposition leader include former Attorney General Githu Muigai and the Kenya Conference of Catholic Bishops. But the Kenya National Commission on Human Rights and the NCCK rejected the proposal saying it conflicts with the principle of separation of powers.

“We note the Constitution does not allocate any fund management responsibilities to the two houses of Parliament,” said Bishop John Okinda, NCCK Vice Chairperson.

“The Supreme Court has already spoken to this issue. We should not reopen this matter. We should allow the national executive run matters of development for the counties, wards and constituencies,” said KNCHR CEO Roseline Odede.

UDA’s push for additional funds for MCAs comes amid calls by the Ethics and Anti-Corruption Commission for additional resources and personnel. EACC contended that the fight against corruption in counties is weakened due to the low number of investigators deployed across the country.

“We actually have about 230 investigators. For example, our Mombasa office covers Kwale, Taita Taveta, Mombasa and the port. We have only five investigators in Mombasa,” said EACC CEO Twalib Mbarak. 

Other stakeholders such as Kitui Senator Enoch Wambua, the Turkana Professional Forum, the Wajir South Leaders Forum, and the National Parliamentary Caucus for Additional Counties, have consistently urged the committee to consider and explore creation of new counties.

Should these proposals be approved, they will lay the groundwork for a referendum to address certain issues on establishment of counties.

Mr Githu also proposed what he called an “unpopular opinion” calling for reduction of counties and constituencies, reinstating the Senate as the upper house, and designating the National Assembly as the lower house. To realise this proposal, a constitutional amendment is necessary.

The proposal to alter the power dynamic in Parliament and elevate the Senate as initially conceptualised by the drafters of the Constitution was also suggested by Kisumu Senator Tom Ojienda and supported by former AG Amos Wako.

“The place of the Senate should be strengthened in terms of legislation,” said Wako.

“Laws should be reframed so that the Senate considers every Bill emanating from the National Assembly,” said Ojienda.

Amid a challenging business environment marked by soaring costs of living, low incomes, high taxes, and increasing unemployment, Kenyans face the potential burden of a Sh15 billion referendum just three years after taxpayers footed the bill for the Building Bridges Initiative (BBI), which was nullified by the Supreme Court.