MPs craft referendum bill as Kenyans await BBI report

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Members of Parliament have crafted a law that if passed will provide a substantive framework for the conduct of referenda.

This comes as the Building Bridges Initiative (BBI) team prepares to hand over its report to President Uhuru Kenyatta and ODM leader Raila Odinga, recommending specific areas to amend the Constitution through a referendum.

So far Kenya has had two referenda. The failed attempt on the Constitution of 2005 and the 2010 process that gave birth to the current Constitution were held under the old Constitution.

In fact, the 2010 process was a modification of the old Constitution through the National Accord and Reconciliation Act of 2008 that ushered in the grand coalition government of immediate former President Mwai Kibaki and Mr Odinga’s Orange Democratic Movement after a disputed presidential election in 2007.

Although the Elections Act of 2011 has provisions for the conduct of a referendum, it is the general feeling that the country needs a substantive law. 


With the National Assembly’s Constitutional Implementation and Oversight Committee (CIOC) coming up with Referendum Bill, 2019, the stage is now set.

“The bill establishes a legal framework for regulation of a referendum, the procedures for conduct referenda and mechanisms for redress,” the bill reads. 

However, the bill by Ndaragua MP Joseph Kioni, who chairs the CIOC, is a copy-pasted version of the elections law and does not fully address inadequacies.

It does not state whether a referendum draft bill should be amended by Parliament or whether a committee of experts should be established to fine-tune it before it is taken to county assemblies.

This means that any bill as redrafted by the electoral commission will continue to remain cast in stone.

It is this fate that faced the Punguza Mizigo initiative by the Thirdway Alliance, which proposed to reduce the number of MPs but flopped after county assemblies rejected it saying it was vague.  

Article 257 (1) of the Constitution says an amendment may be proposed by a popular initiative in form of a general suggestion, or a formulated draft bill signed by at least one million registered voters.

The draft bill and the supporting signatures are then to be delivered to the electoral commission for verification.

The verification exercise is to be done in 90 days from the date the bill is received by the commission. 

In determining whether the initiative meets the requirements, the commission shall redraft the bill without altering its substance.

If the commission is satisfied that the initiative meets the requirements, the bill shall be delivered to the 47 county assemblies for consideration within three months from the date of receipt.

Without amending the bill, at least 24 counties are required to approve it before it’s submitted to Parliament – the National Assembly and the Senate – for consideration.

The bill is passed by Parliament if a majority of the members of each House support it.

The President shall sign it into law paving the way for the electoral commission to conduct the plebiscite in 90 days.

At least 20 percent of registered voters in each of the 24 counties must vote in the referendum. The bill is approved if it is supported by a simple majority of the people.

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