The national referendum on the Constitution of Kenya (Amendment) Bill 2020 is inevitable, promoters of the initiative have said.
BBI Joint Secretary, Mr Paul Mwangi, says suggestions that it is possible to change the Constitution on the premise of the BBI Bill, without subjecting Kenyans to a referendum, are ill-advised.
Mr Kamotho Waiganjo, an Advocate of the High Court, had suggested reasons why the Bill may not reach the plebiscite level after all.
“The Bill would need a referendum if rejected by more than half of the members of both Houses. This is a near impossibility. If the government manages to use its resources to get an approval by more than a thousand MCAs, 300 odd members of Parliament will be an easy picking,” Mr Waiganjo said.
“Secondly, the Bill would be required to go to a referendum if it contains any of the 10 protected provisions set out in Article 255,” he also said, adding that he was not convinced that it expressly contains any of the protected provisions.
“ … unless one argues that the removal of the Cabinet approval provisions affects the functions of Parliament or that the appointment of the Judiciary Ombudsman offends judicial independence. These are arguable points. The promoters of the BBI may prefer to take a risk and only go for a referendum if it is decreed by the courts.”
But Mr Mwangi cited Article 257 (10) which states that “if either House of Parliament fails to pass the Bill, or the Bill relates to a matter mentioned in 255 (1), the proposed amendment shall be submitted to the people in a referendum.”
The creation of the office of Prime Minister, the appointment of MPs as ministers and the inclusion of technocrat ministers as ex-officio MPs are some of the aspects Kenyans will be required to vote on in a BBI referendum.
The public will also go to the plebiscite vote to state whether they agree with proposals to change the independence, terms of service or abolition of some of Chapter 15’s independent commissions.
The constitutional commissions are protected by the 2010 Constitution so any changes to them require the approval of the public by way of a referendum.
Article 255 of the Constitution says, “A proposed amendment to this Constitution shall be enacted and approved by a referendum if the amendment relates to any of the following matters: the supremacy of this Constitution; the territory of Kenya; the sovereignty of the people; the national values and principles of governance; the Bill of Rights; the term of office of the President; the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies; the functions of Parliament; the objects, principles and structure of devolved government; or the provisions of this Chapter.”
This means that any proposal that affects the 10 issues must be presented to Kenyans as a question on which they will vote in a referendum.
Mr Mwangi also cited Article 256 (5), noting that the President shall, before assenting to the Bill, request the Independent Electoral and Boundaries Commission (IEBC) to conduct, within 90 days, a national referendum for approval of the Bill.
“Remember all this time this Bill is not split. You can’t split it at the National Assembly so even when you take it to the people it must be the whole package that you proposed, which they could not change,” Mr Mwangi said in an interview on Monday.
He went on: “It cannot be that on one hand, county assemblies and Parliament were able to consider the Bill wholesomely but when it comes to the people you deny them a chance to consider the Bill in the same way, when they are the employees of those who made the decision previously.”
Makueni Senator, Mr Mutula Kilonzo Jr, and former East Africa Law Society (EALS) President, Mr James Mwamu, also said the BBI referendum is now certain.
“It is too late to avoid a referendum. This is a popular initiative and it must be validated by the people,” Mr Kilonzo Jr told the Nation.
“You cannot severe the parts that are protected by Article 255, although the Constitution and the elections have clauses that may give credence to the school of thought that only the items that affect Article 255 will be subjected to a referendum.”
The threshold in Parliament, he further said, is not a “sine qua non” (an essential condition) to avoid a referendum.
“The promoters chose the method of popular initiative by way of a draft Bill and not general questions, he said.
Mr Mwamu said that altering the structure of the executive and the legislature without going to a referendum will successfully be challenged in court should there be such attempts.
“You cannot alter these structures without going for a referendum. Whatever amendments made will be thrown out by the Court,” he said.
The Constitution of Kenya (Amendment) Bill 2020 is currently before the two Houses after its approval by at least 42 county assemblies.
Mr Mwangi said Kenyans will vote, in a referendum, on matters touching on the functions of Parliament, the independence of the Judiciary and the Chapter 15 commissions, as well as the objects, principles and the structure of the devolved government.
On the functions of Parliament, they will be asked to choose whether they want a Parliament with members of the Executive sitting in it.
Currently, all the 22 Cabinet secretaries, who will be called Cabinet ministers under the BBI proposals, the President and Deputy President do not sit in Parliament. The CSs are required to answer questions in the House through parliamentary committees in a purely presidential system introduced in 2010.
The BBI Bill has proposed a mixed Cabinet with some members drawn from the National Assembly. Those chosen from outside the House, including the Attorney-General, will be co-opted in the House as ex-officio members.
The Bill also proposes the creation of the post of Prime Minister, who will be the leader of government business in the National Assembly and will supervise the execution of functions of ministries and government departments.
The Bill also proposes that Parliament ceases to vet Cabinet ministers and principal secretaries, a move that will affect the functions of Parliament.
“The proposal to create a prime minister, have ministers drawn from the National Assembly and co-opt those from outside as ex-officio members of the House changes the function of Parliament as the Executive will now sit in it,” Mr Mwangi said.
The second issue is on the independence of the Judiciary and the Chapter 15 commissions—another referendum issue.
The Chapter 15 commissions are the Kenya National Human Rights and Equality Commission; National Land Commission; Independent Electoral and Boundaries Commission; Parliamentary Service Commission; Judicial Service Commission; Commission on Revenue Allocation; Public Service Commission; Salaries and Remuneration Commission; Teachers Service Commission; and National Police Service Commission, with the Auditor-General and Controller of Budget classified as independent offices.
The Bill proposes the establishment of the Judiciary Ombudsman, who will receive complaints from the public, investigate, discipline and initiate removal of judicial officers.
