Referendum gives Kenyans the ultimate sovereign authority

Sekou Owino  

By Sekou Owino

In Summary

• The people of Kenya at a referendum have become the ultimate sovereign authority of this country. That is a privilege that cannot be denied. The question then, is, to what use that innate arm of government, the people at referendum, will be used

There is some confusion among Kenyans about the essence of a referendum and what it really is about.

This is in light of the campaign by the Cord leadership seeking signatures to force through a constitutional amendment that would, among others, compel the dissolution of the Independent Electoral and Boundaries Commission (IEBC), increase the share of revenues to the county governments and possibly change the system of government from what is called a pure presidential executive design to a hybrid design that combines aspects of the presidential system with components of a Westminister-style parliamentary model.

This quest for a referendum is compounded by another one, supposedly independent, by the Governors (though some of them have since opposed it) which is directed purely at an amendment of the constitutional provision that sets the minimum proportion of revenue that the should be allocated to county governments from the revenues raised nationally.

The Governors intend to have a referendum in which they propose that Article 203 of the Constitution be amended to compel the national government to ensure that at least 45 per cent of the revenue collected nationally is transmitted to the county governments. The current directive is that a minimum of 15 per cent must be so allocated.

Granted, referenda are essentially political initiatives and they are wont to attract supporters and opponents for reasons other than their merits. In this regard, the two separate initiatives by Cord and the Governors are no different.

Various objections and grounds of support have been given in support or opposition to the campaigns for the referenda. However, hardly any of the proponents or opponents of either have been illuminating.

There are clear political and ethnic alliances at play in the opposition or support for the referenda. Some of these reasons may seem derisory for supporters of the opposing view, such as the arguments about the supposed concerns of cost.

There are, however, fairly reasonable arguments on either side as well, one of these being the concern that there is a risk in amending the Constitution so early in its life and even before its implementation is fully unfurled. However, it must be understood that this is a political preference issue rather than a legal one.

A true concern with the referendum initiatives — particularly Cord’s — is that it appears to have been taken by citizens as a second round political arm-wrestling between the contestants of the last presidential election, that is, the Cord and Jubilee coalitions. It will therefore be seen as either a second rehash of the 2013 elections or a pre-run to the next presidential election.

This is particularly evident in the fact that there appears to be little or no understanding of what the ultimate questions at the referendum will be about — bar the push by the Governors.

There is little or no conversation and discussions on the real content of the referendum questions other than the political, economic and supposedly divisive risks of holding a referendum at this point in time.

In this scenario, the calls for a referendum may be worrisome because the referendum is not meant to resolve issues on which the differences are purely of political party or ethnic differences.

While the right of public initiative exists and is founded in the Constitution itself, there is merit in the argument that this right must be exercised with caution and properly to avoid making the referendum a subject of issues that do not deserve to be resolved by that method or to which the referendum will not bring true resolution and closure.

It needs to be borne in mind that, although the device of a referendum is fairly novel in Kenya and is a rare occurrence, that does not mean that referenda should, of necessity, be rare and avoided.

There is no denying that a referendum by its nature is the ultimate exercise by the citizens of a country of their sovereignty — by expression of their preference for an option in governance.