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Hurdles to a 2019 referendum

Analysts say state of IEBC, funds and lack of referendum law may delay proposed review of Constitution 

Hillary Mageka @hillarymageka

Will there be a referendum on the Constitution this year or not? This is the big question prompted by Opposition leader Raila Odinga’s declaration last week that those who stand on its way will be swept aside.

This emotive question will likely be decided by the outcome of the views being collected by the Building Bridges Initiative — a creature of the March 9, 2018 Handshake between President Uhuru Kenyatta and Raila.

Initially opposed vehemently by Jubilee politicians mainly allied to Deputy President William Ruto, a referendum to review the nearly nine-year-old Constitution is almost a foregone conclusion. It is now more of a question of when, not if.

According to constitution lawyers, analysts and politicians, that when may not be soon.  West Mugirango MP Vincent Mogaka sees the possibility of holding a referendum this year as a long shot.  According to him, the earliest a referendum can be held is 2021, a year to the 2022 election.

Mogaka says the biggest hurdle to a plebiscite is the state of the Independent Electoral and Boundaries Commission (IEBC).

Skeletal commission

He says that besides the skeletal commission, the electoral body is saddled with other responsibilities like the boundaries review, besides lack of funds.

Constitution lawyers Senior Counsel Nzamba Kitonga and Bob Mkangi – both who were members of the Committee of Experts that helped write the 2010 Constitution – agree that IEBC cannot deliver a referendum in its current state.

According to Mkangi, re-organisation of the electoral agency and its guiding legal framework need to be addressed.

IEBC, he says, suffers from a deficiency of public confidence and trust. “To repair IEBC, we should not just top up the commissioners but do an overhaul of the commission,” he says.

Kitonga agrees with Mkangi that recruitment of more commissioners will not address the lack of confidence and trust in the polls team.

Mkangi says money is a factor on whether a referendum can be held this year or not.

“The National Treasury has not allocated any funds in the 2019/20 financial year to the Independent Electoral and Boundaries Commission to conduct a referendum,” he says.

Besides the state of IEBC, Mkangi says the fact that a referendum law is yet to be enacted complicates the situation even more. “We must put our house in order if we are going to have a plebiscite,” says Mogaka, who is also a lawyer.

Referendum law

But the Leader of Majority in the National Assembly Aden Duale told People Daily   that the House Business Committee is waiting for a referendum law proposal from the Justice and Legal Affairs committee.

“We have no referendum law and that is why last year we told the Justice and Legal affairs committee to work with IEBC and table before the HBC a proposal on that,” he said.

To avoid a referendum that may divide the country down the middle like the 2005 plebiscite and an unpleasant spillover to the 2022 election, Mkangi says there is need to arrive at a consensus among the politicians before subjecting the proposed issues to a national vote.

“We must build political consensus around some issues and avoid going into the referendum a divided nation as was the case in the 2005 referendum,” said Mkangi.

Kitonga says the proposed amendments must be scrutinised to separate those that need  a referendum and those that can simply be enacted by Parliament.

“We must separate what goes to Parliament and a national referendum. Not all proposals need a referendum,” he told People Daily.

Kitonga, who was the chairman of the Committee of Experts, said a committee that will draft a document on referendum proposals should be established.

Governance system

At the heart of the Constitution review debate is the system of government.  Among the controversial proposals is the creation of position of executive prime minister, abolition of the Senate and scrapping the positions of nominated MPs and MCAs and Woman Representative seats in the National Assembly.

Some groups have also been calling for a review of the devolved system. While others want a three-tier system, some want the counties reduced from 47 to not more than 16.

While the proponents of a review of the Constitution say it will help bring about inclusivity in the country’s leadership, those opposed to the calls say it is merely meant to create positions for politicians.

Expanded Executive

Last week, Raila, who is seen as the leader of the pro-referendum group, declared 2019 the year of reforms.  “This will be the year of change for this country,” he told university student leaders who paid him a courtesy call. His sentiments were in contrast to those of Ruto, who is considered the leader of the anti-referendum brigade.

“We need to ask ourselves if it’s possible to have the census this year, boundaries delineation next year and general election thereafter and a referendum in between. We could agree to have it with the elections in 2022,” Ruto said in an interview with BBC.

Raila wants the executive to be expanded to bring back the position of prime minister which he held between 2008 and 2012. He argues that this would ensure more Kenyans are represented in the country’s leadership and end the winner-takes-it-all system.

While Ruto says he supports the creation of an all-inclusive government, he is sceptical about proposals to create the position of prime minister and two deputies, saying it does not solve the problem of lack of inclusivity. He says what is needed is “a functional, constitutional official Opposition”.

The DP says that the leader of the party which comes second in elections and his or her running mate should automatically become Members of Parliament, and assume leadership of the Official Opposition.

While they have contrasting views on whether to review the Constitution and what needs to be changed, Ruto and Raila agree on at least one thing: The need to appoint some or all Cabinet members from among Members of Parliament, unlike in the current situation where Cabinet secretaries must not be MPs.

President Uhuru Kenyatta’s opinion on a referendum on the  Constitution or his preferred system of government should there  be changes, is not known, because he has steered clear of the  entire referendum debate.

The closest he has come to commenting on the matter was when he vouched for an all-inclusive government during a visit to Kisumu last year.