Referendum: Debunking the myths

“Under three things the earth trembles, under four it cannot bear up: a servant who becomes king, a fool who is full of food, an unloved woman who is married, and a maidservant who displaces her mistress.”

In any referendum the servants become king. Swiss voters make important national decisions through referendums. For example, they have through referendum rejected UN membership and links with the European Union. These two decisions were made by the voters against the wishes and advice of their political leaders.

On March 16, 2014 the residents of Crimea, in Eastern Ukraine, voted at a referendum to leave Ukraine and join Russia. Egyptians in December 2012 at a referendum voted for a new Islamist-backed Constitution.

In May 1991, Croatia voted at a referendum to gain independence from former Yugoslavia. Croatia has conducted other referendums to prevent same sex marriages, and to allow the languages of minority tribes become part of the official languages used in Local Government, Civil Service and the Judiciary.

A referendum on whether Scotland should leave the United Kingdom and be an independent country will take place on September 18, 2014. That referendum is a once in a generation opportunity for the Scots to have a say about the country’s future.

The Scottish government is pushing for independence. The UK government is engaged in campaigns for Scotland to stay. Some of the issues the UK government has raised in support of its position include the future of the English Pound, the Bank of England, the national debt and membership of the European Union. The Scots are motivated by the freedom to set their own agenda and make their own decisions. For now, important matters concerning Scotland are debated and decisions made in Westminster.

Referendums go to the heart of democracy. Through them voters are given the right to set the agenda, discuss the issues and make the final decisions. Referendums put the stamp of legitimacy on important political questions of the day. They are a form of direct democracy.

Kenya has had two referendums. The first in 2005. The second, five years later, in 2010. Should the push by the Opposition for a referendum come to fruition, it will be the third after a five year cycle.

Kenya’s Constitution is itself a product of the 2010 referendum. It is that Constitution that establishes referendums and popular initiatives as constitutional processes through which Kenyans can directly vote to amend the Constitution. Every Kenyan has a right to initiate either process. The Constitution differentiates between a referendum and a popular initiative. Under a popular initiative, it is possible for at least one million registered voters to propose and for amendments to be made to the Constitution without a referendum.

However, certain parts of the Constitution are protected. These include the provisions dealing with devolved government, functions of Parliament, the Judiciary, and Constitutional Commissions. These parts of the Constitution cannot be changed by Parliament or through a popular initiative only, without Kenyans voting for or against the changes at a referendum.

The Referendum and the Popular Initiative are constitutional institutions. They stand shoulder to shoulder with the Senate and the National Assembly in the amendment of the Constitution. These two institutions, and the rights they represent and offer, should not be trivialised. They are fundamental tools of democracy. The political and legal debate should be centred on the issues or questions that will form the push for the popular initiative or the referendum. Until such issues or questions crystallise in a draft Bill presented to the IEBC by at least one million registered voters, the debate is moot.