As the possibility of the country holding a referendum to amend the Constitution moves closer to reality following the apparent closing of ranks between the two main political camps, focus now shifts to the legal and administrative requirements that will drive the process.
At the third regional Building Bridges Initiative (BBI) consultative meeting held in Mombasa on Saturday, Deputy President William Ruto’s allies, who have in the past fiercely opposed talks of a referendum, softened their stance and declared that, not only are they open to a plebiscite, but they will also back calls to expand the executive if that is the wish of the people.
Addressing the Mombasa rally, Senate Minority Leader James Orengo called on leaders to stop premature campaigns for 2022 polls and instead focus on the referendum which, he proposed, should be held in the next seven months.
However, the constitutional timelines required to hold a referendum are quite elaborate and cast in stone.
This could drag the process into next year, just a few months to the August 2022 General Election.
Concerns have been raised over the lack of a requisite legal framework and the question of who will preside over the referendum should a recommendation in the BBI report that calls for an overhaul of the electoral agency be implemented.
National Assembly Majority Leader Aden Duale is a big proponent of the referendum law.
He has argued that such a law is important to address the unique issues that various stakeholders want tackled in the proposed constitutional amendments.
He has argued that such a law is necessary to put the many issues being proposed by each region into a single vote.
The three BBI regional meetings held so far have revealed the unique nature of the issues that each region wants tackled and it is not clear whether a vote will be conducted for every single one.
Among other things, there have been calls to ensure that the referendum law contains timelines requiring the President to present the Act to the Independent Electoral and Boundaries Commission (IEBC) and for the commission to roll out a vote after the National Assembly gives approval.
The law should provide a clear guideline for IEBC when it comes to verification of signatures and make the process public.
There are also disagreements on who should introduce the bill on the floor of the two chambers after passage by county assemblies.
Nandi Senator Samson Cherargei said there is a legal technicality as there exists no referendum law.
“However, since we have conducted referendums in 2005 and 2010, we can use the guidelines IEBC developed. There are also budgetary issues that must be addressed as there is no money set aside for it,” he said. He also raised concerns over proposals in the BBI report to restructure the IEBC.
“At the moment, we only have three commissioners. Our colleagues in ODM have also termed it a ‘criminal enterprise’ and we don’t understand how it will be entrusted with the referendum. My opinion is that we have the vote in 2022 when we go to the elections.”
President Uhuru Kenyatta extended the mandate of the BBI task force last week and gave it until June 30 to submit a comprehensive final report to the government.
Assuming the team submits its report in the stipulated time-frame, the constitutional timelines toward a referendum will start running then.
Both Houses of Parliament will have a six-month window within which to consider a constitutional amendment bill that will come out of it.
However, legal experts disagree on how the bill will be introduced. While Rarieda MP Otiende Amolo argues that the bill can be introduced simultaneously in both Houses, Makueni Senator Mutula Kilonzo Junior says a simultaneous introduction is not tenable as per the Constitution.
“Article 256 talks of the bill being introduced in either House, not both Houses,” Mr Kilonzo Junior told the Nation.
In any case, the nature of parliamentary traditions suggests that no bill bearing the same title can be introduced in the two Houses simultaneously.
Assuming that the sponsors of the bill take the popular initiative route to the amendment, there is the collection of one million signatures, submission to IEBC for verification and forwarding of the bill to the 47 county assemblies for approval.
Mr Kilonzo Jnr said that although the BBI task force has five months to finalise its work, there is a need to ensure that there is a referendum bill as soon as possible.
“I think six months is too long and will give room for political machinations,” added Mr Kilonzo.
Lawyer Ambrose Weda said a referendum is possible this year should there be minimal opposition to the proposed amendments.
Kirinyaga Governor Anne Waiguru said that should Kenyans agree on BBI changes, the referendum should be done at the earliest possible, preferably by the end of the year.
She said this will allow ample time for requisite legislative and institutional changes for a new dispensation.
ODM Director of Political Affairs Opiyo Wandayi said the team should start drafting bills on issues that will require legislation before April.