The push by the Coalition for Reforms and Democracy (Cord) for a referendum will take the “popular initiative” constitutional provision as a way of beating the numerical strength that Jubilee enjoys in Parliament.
The Opposition will need to collect at least one million signatures, as required by law, to support the campaign, before moving to the next stage of getting the endorsement of at least 24 county assemblies, after which the referendum question will be taken to Parliament.
The method picked by Cord has a crucial provision which means that Parliament cannot block the move to a referendum. The provisions laid out in Article 257 provide that should 24 counties or more support the referendum questions, the matter would then be taken to the National Assembly and the Senate.
If both Houses of Parliament pass the draft Bill, they should be forwarded to the President for assent without going to a referendum.
The clincher that Cord is relying on is that should either House reject the referendum questions, then they will automatically be presented to the electorate for a vote within 90 days. This means that Jubilee will be constrained in its one advantage tyranny of numbers – in Parliament to block the Opposition’s wish for a referendum. Mr Odinga was given details of the strategy last Friday, sources familiar with the move said.
Siaya Senator James Orengo told the Sunday Nation they were confident the strategy would work.
“Whichever way, this thing must end at a referendum except if the questions do not mandatorily require a referendum. Again, you should know that not all of the 13 issues we have raised will be subjected to a referendum,” Mr Orengo said.
It appears that the county assemblies will provide the biggest battleground for the referendum questions as each side works to win over majority of the Members of the County Assembly (MCAs).
Sources say Cord is working on a one-year timetable they hope will eventually lead the country to a referendum late next year on issues they say demand urgent attention.
However, disbandment of the Independent Electoral and Boundaries Commission (IEBC), increasing budgetary allocations to counties and checking insecurity have been identified as key areas to guide the referendum.
The chairperson of Cord’s Committee of Experts on the referendum lawyer Paul Mwangi told the Sunday Nation that the popular initiative was the preferred route rather than the parliamentary method through which each House would have to support an amendment by two-thirds majority.
“We are going to conduct an inclusive process by inviting like-minded people who have concerns on any aspects of the Constitution that can be addressed through this process,” Mr Mwangi, a former constitutional adviser to the defunct office of Prime Minister, said.
The committee also includes Ms Kethi Kilonzo, Mr Khelef Khalifa and former Permanent Secretary Beatrice Kituyi.
The team is expected to start the process of forming a secretariat from Monday.
Mr Mwangi added that there would be public participation to refine the various suggestions being made on the referendum.
“For now, there is no limitation on the number of issues. It will be based on a broad-based consensus,” he said.
According to Article 257, an amendment to the Constitution may be proposed by a popular initiative signed by at least one million registered voters.
“A popular initiative for an amendment to this constitution may be in the form of a general suggestion or a formulated draft Bill,” reads part of the article.
Highly placed sources within Cord said they intended to rally Kenyans and their elected leaders around popular issues that will be selected from among the 13-point agenda that Cord identified.
“Once the majority of Kenyans, whether Cord or Jubilee or even Amani, agree with us that there is a need to increase the money given to counties and that governors need to be in charge of county security, MCAs, MPs and Senators will have little choice but to pass the Bill,” said a senior adviser to Mr Odinga, who declined to be named.
Speaking in Mombasa on Friday, Cord co-principal Kalonzo Musyoka said they would strive to collect as many as 10 million signatures.
“We want to use the referendum as a platform to ensure we use a democratic and legitimate course to usher in new leadership that will consider a multi-racial, cultural and religious nation,” he said without explaining how the success or failure of the initiative shall achieve regime change in the country.
He revealed that the coalition will set up campaign teams at the grassroots levels to push for the referendum.
“This referendum is not about Cord but the agitation by Kenyan people with positive aims,” added Mr Musyoka, saying Cord had no ulterior motives.
Some in the Jubilee camp have expressed hope that being a long and a tedious route, the push by Cord might even suffer natural death.
But the Majority Leader in the National Assembly Aden Duale said yesterday that Cord had a strategy lapse.
“As much as we are happy that they eventually chose the constitutional route to pursue their agenda, I must point out that their main problem has always been lack of strategy and that’s why we are never worried about the kind of noise they make. All these issues that they are raising can be addressed by Parliament,” he said.
He argued that the push by Cord to have not less than 40 per cent of the national revenue channelled to counties was already overtaken by events.
THE DONKEY OR THE CART?
“In the current financial year, 43 per of revenue will be sent to counties. This already surpasses their figure,” he said.
But Senator Orengo says that needed to be enacted into law.
On IEBC, Mr Duale asked whether Cord wanted to deal with the “donkey or the cart”. “They want IEBC disbanded yet the law stipulates that it is the same IEBC that is supposed to conduct any referendum. It is hard to know what they really want,” he said.
But according to the Amani Coalition leader Musalia Mudavadi, Cord is not keen on its referendum call. He argued that the coalition only wanted to set the political agenda ahead of the next elections.
“I can tell you that they are not interested in the referendum; what they want is to create a talking point in the run-up to 2017 elections,” he said.
Rongo MP Dalmas Otieno, a renegade member of the coalition, dismissed the referendum calls saying it was “too premature” to amend the constitution.
“Although my party has called for a referendum, I do not agree with it on the procedure of doing it. This is an important exercise that should not be rushed,” the MP said at Kanyawanga High School in his constituency where he was attending a prize-giving day.
But even as Cord prepared to start recruiting staff in counties to help in the referendum push, they are aware that a number of technicalities lie in the way given the protracted nature of the undertaking.
According to Homa Bay MP Peter Kaluma, they have the remedy to all the challenges bound to come their way including who to preside over the vote.
“IEBC is a subject matter of the referendum and because you cannot be a judge in your own case, we will go the IPPG (Inter-Parties Parliamentary Group) way and nominate people to oversee this at the right time,” the MP said.
And interestingly, we have established, Cord is hoping its Jubilee rivals will create as many hurdles to the process as possible to unwittingly help the Opposition gain political capital.
The fear on the government side is that success at the referendum will give Cord a head-start in the 2017 elections.
Equally, there is concern within the Cord leadership that a defeat would be a vote of confidence in the Government of President Uhuru Kenyatta and would bolster him ahead of 2017. They, therefore, plan to give it their best shot because their political future depends on it.
Additional reporting by Galgalo Bocha and Elisha Otieno