As Kenya approaches the 2027 General Election, a critical conversation gathering steam is whether our Constitution, promulgated in August 2010, still remains a powerful instrument of change aligned to our nation’s political and socioeconomic transformation journey.
A healthy debate emerging online and in other fora validates how Kenyans across the political divide passionately defend the spirit of the Constitution but also point out a few critical areas that need reimagining. These include the cost implications to the economy of implementing some of its key provisions, such as the form and means of public participation as currently framed, and the two-thirds gender rule.
Resolving these issues calls for a holistic engagement, devoid of political emotions, personal ambitions, name-calling or sensational conspiracy theories on social media alleging a plot to extend term limits. As I stated a few days ago, a referendum moment is here, and it is inevitable. It is a rational, necessary step to safeguard our democracy, resolve longstanding legal hurdles and ensure fair, inclusive governance.
The first step is to confront the looming constitutional crisis that could derail the 2027 elections. The Constitution mandates the Independent Electoral and Boundaries Commission (IEBC) to review constituency and ward boundaries every eight to 12 years. The last comprehensive review was finalised on March 6, 2012, meaning the window for another review closed on March 6, 2024.
We are now in breach of our supreme law. Without a valid review, the risk of elections being nullified on the basis of outdated boundaries and violation of citizens' rights to fair representation remains high. This is not speculation; it is a legal reality staring at us.
Compounding this is the census deadlock. A credible boundary review requires uniform national population data, but the 2019 Census data for Mandera, Wajir and Garissa counties was nullified on January 28, 2025, citing significant irregularities in data collection. The court ordered a “mini-census” in these areas by January 2026. Patching up 2019 data from 44 counties with 2026 figures for the three counties undermines the accuracy and reliability of the data set. Without a constitutional amendment to resolve this, IEBC cannot proceed.
Kenya’s population has grown by over 12 million since 2010, yet Article 89 (1) caps constituencies at 290, preventing IEBC from creating new seats in high population growth areas without amendment. Protected constituencies, spared in 2012 due to special factors like geography or sparsity, now face extinction. The Constitution empowers IEBC to adjust wards, but the County Governments Act caps them at 1,450, limiting flexibility for population surges. These caps trap resources far from the people.
Nadco’s constitutional amendments
A constitutional review must also address the recommendations of the National Dialogue Committee (Nadco), which was born out of the post 2022 elections bipartisan talks convened to address protests on electoral justice, cost of living and governance issues. The Nadco report identifies reforms that only Kenyans can approve via referendum.
Foremost is entrenching the National Government Constituencies Development Fund in the Constitution, to shield it from court challenges deeming it unconstitutional. Nadco further proposes to entrench the National Government Affirmative Action Fund to be managed by woman representatives, a Senate Oversight Fund to support senators’ unique devolution role and a Ward Development Fund for members of county assemblies.
To further unify Kenya's governance structure, Nadco proposes formalising the offices of the Prime Minister and Leader of the Official Opposition. This is not about rewarding personalities but institutionalising positions for future stability and continuity.
The referendum proposed for 2027 is essential to enact Nadco’s constitutional amendments, directly supporting the agenda's goals.
Why hold this referendum alongside the 2027 elections? Efficiency, cost savings and practicality. Separate referenda are prohibitively expensive. A combined referendum and general elections will enable IEBC to efficiently allocate logistics, polling stations, voter register and security costs, while boosting turnout. Furthermore, higher election turnout means less voter apathy and more voices on reform pathways.
As patriotic Kenyans, we must choose reasoned, transparent reform over fear, rumours and political expediency. Let us focus on the facts: the referendum is about fixing systemic flaws, not power grabs. In this open debate, I particularly look forward to hearing from our legal fraternity regarding their objective assessment of these issues.
Mr Mudavadi is the Prime Cabinet Secretary and Cabinet Secretary for Foreign and Diaspora Affairs. [email protected]
