The Cord alliance faces major hurdles in its quest for a public referendum on key national issues as outlined in the 13-point declaration made during the Saba Saba rally on Monday.
One of the key demands was establishment of a National Referendum Committee, whose main responsibility would be to frame the referendum question(s), prepare the public for the vote and ensure that as many Kenyans as possible take part.
The team would be tasked to collect the one million signatures needed to initiate the public petition for a referendum.
However, any referendum would have to be conducted by the Independent Electoral and Boundaries Commission (IEBC), which Cord wants disbanded.
“Having lost all confidence in the IEBC, we now demand its immediate disbandment and the establishment of a new electoral body,” said the declaration read by Senators Boni Khalwale, Hassan Omar, and Ms Rosemary Kariuki, daughter of assassinated politician JM Kariuki.
In the event the electoral commission is dissolved, Cord has suggested an alternative in the referendum being conducted by an independent body appointed by the United Nations, but Kenya has no law presently allowing such a move, so Parliament might be required to give passage to the necessary instruments.
Lawyers were, however, on Tuesday divided on whether a referendum can be held under Part V of the Elections Act or it would first be necessary to amend the Constitution.
Ruaraka MP Tom Kajwang, a lawyer, told Nation that Cord was demanding the referendum as provided for under the Elections Act. But Nairobi lawyer Edward Muriu, who was involved in last year’s presidential elections petition at the Supreme Court, said the law only provides for the procedure of conducting the referendum.
According to Mr Muriu, matters that qualify for a referendum are spelt out in the Constitution and include the Bill of Rights, the sovereignty of the people, the functions of Parliament and devolution.
Mr Muriu argues the issues that Cord raised do not qualify for a referendum and can be addressed through laws passed by MPs.
According to the Elections Act, whenever it becomes necessary to hold a referendum on any issue, a notice is issued to the President, who in turn refers the matter to the electoral commission, which formulates the referendum question.
Mr Kajwang’ said Cord would collect more than one million signatures and present them together with its notice to the President.
“The referendum will be driven by Kenyans and we will wait to see whether the President can reject the popular will of the people,” he said in a telephone interview.
However, the law also requires the electoral commission to consult the Speaker of the National Assembly, after which the question is put to Parliament for approval.
This is where Cord will face its biggest test because it does not have the numbers in the National Assembly. The Opposition coalition has 129 members compared to Jubilee Coalition’s 216.
Mr Kajwang on Tuesday said Cord was aware it would once again be subjecting itself to the ‘tyranny of numbers’ in favour of Jubilee when the matter comes to the National Assembly.
“Cord will have to come up with an agenda that has a popular appeal and convince everyone that the matter cannot be resolved either through legislation or administratively,” said Mr Muriu.
If MPs approve the Motion for a referendum, the electoral commission would then embark on the exercise. That is the same commission Cord wants disbanded.
Mr Kajwang is categorical that in the fullness of time, the Jubilee administration will pay if it refuses to allow the referendum.
“It will be for Kenyans to decide what to do with the Jubilee administration if it refuses to accede to the wish of the majority who are passionate about the issues we have raised,” he said, without explaining how Jubilee would be forced to accede.