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Referendum Should Follow Kenya Constitution 257.

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Former President Mwai Kibaki raises Kenya Constitution 2010. Former President Mwai Kibaki raises Kenya Constitution 2010.

The referendum has seen: MP Kanini Kega file a high court case, three Kenyans file a case on behalf of 12 million voters, Jubilee state it will collect 10 million signatures to oppose, and many other abrupt decisions made. Some of the decisions if not well thought out could violate Kenya Constitution 257 laws and in doing so also violate Kenya Constitution 2010 law 3. (1) Every person has an obligation to respect, uphold and defend this Constitution.

To respect and uphold the constitution one has to understand the constitution. Below an understanding of Kenya Constitution 257. 

257 (1) An amendment to this Constitution may be proposed by a popular initiative signed by at least one million registered voters. 

This law understood means each registered voter has a right to sign or not to sign the initiative. “Popular,” means 1 million signatures of registered voters. 

257 (2) A popular initiative for an amendment to this Constitution may be in the form of a general suggestion or a formulated draft Bill. 

This law should be understood in the context of the words, “General suggestion,” and “formulated draft bill.” This creates two approaches. The “General suggestion,” approach forms a discussion process. 

257 (3) If a popular initiative is in the form of a general suggestion, the promoters of that popular initiative shall formulate it into a draft Bill.

This should be understood based on promoters once having discussed the general suggestion formulating it to a draft bill.  The risk of the general suggestion approach is that it can be defeated by court cases. For example currently there is no suggestion to change Presidential Election by popular vote to President Election by Parliament. If this were to be added in the draft bill it could be challenged in court as a violation of the “General Suggestion.”         

257 (4) The promoters of a popular initiative shall deliver the draft Bill and the supporting signatures to the Independent Electoral and Boundaries Commission, which shall verify that the initiative is supported by at least one million registered voters.

Whereas saying we shall collect 5 million or 10 million signatures can be said by anyone the fact is getting those signatures is not easy especially if what is been asked for is not popular. However, once more than 1 million signatures are met then the IEBC would verify.  

257 (5) If the Independent Electoral and Boundaries Commission is satisfied that the initiative meets the requirements of this Article, the Commission shall submit the draft Bill to each county assembly for consideration within three months after the date it was submitted by the Commission.

The IEBC is given 3months to verify the 1 million signatures are indeed valid and then submit the draft bill to each of the 47 Counties.  

257 (6) If a county assembly approves the draft Bill within three months after the date it was submitted by the Commission, the speaker of the county assembly shall deliver a copy of the draft Bill jointly to the Speakers of the two Houses of Parliament, with a certificate that the county assembly has approved it. 

It is at this point that each county shall open debate and all Kenyans will now discussion the draft bill. A likely case that could occur is whether nominated persons who are not directly elected should vote as representing the people. However, in three months or 90 days the passed draft bills would be presented to parliament.        

257 (7) If a draft Bill has been approved by a majority of the county assemblies, it shall be introduced in Parliament without delay. 

The specific words here are “without delay,” to mean if parliament is in session the bill shall immediately be allocated time for debate and a vote. This law however does not state whether if parliament is in recess as to whether the parliamentarians will be called back. 

257 (8) A Bill under this Article is passed by Parliament if supported by a majority of the members of each House. 

This constitution law would have the 349 members in National Assembly vote and 67 members of Senate. A majority 175 in National Assembly and  34 in Senate would carry the day. 

257 (9) If Parliament passes the Bill, it shall be submitted to the President for assent in accordance with Articles 256 (4) and (5). 

The articles 256 (4) Subject to clause (5), the President shall assent to the Bill and cause it to be published within thirty days after the Bill is enacted by Parliament. 256  (5) If a Bill to amend this Constitution proposes an amendment relating to a matter mentioned in Article 255 (1)— (a) the President shall, before assenting to the Bill, request the Independent Electoral and Boundaries Commission to conduct, within ninety days, a national referendum for approval of the Bill; and (b) with in thirty days after the chairperson of the Independent Electoral and Boundaries Commission has certified to the President that the Bill has been approved in accordance with Article 255 (2), the President shall assent to the Bill and cause it to be published.

257 (10) If either House of Parliament fails to pass the Bill, or the Bill relates to a matter mentioned in 255 (1), the proposed amendment shall be submitted to the people in a referendum.

Since Sovereign power belongs to the people if Parliament rejects what has been approved by 24 county assemblies or touches on any of the nine items in 251 (1) “(a) the supremacy of this Constitution; (b) the territory of Kenya; (c) the sovereignty of the people; (d) the national values and principles of governance mentioned in Article 10 (2) (a) to (d); (e) the Bill of Rights; (f) the term of office of the President; (g) the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies; (h) the functions of Parliament; (i) the objects, principles and structure of devolved government,” a referendum will be the final approval.  

257 (11) Article 255 (2) applies, with any necessary modifications, to a referendum under clause (10).” 

255 (2)A proposed amendment shall be approved by a referendum under clause (1) if— (a) at least twenty per cent of the registered voters in each of at least half of the counties vote in the referendum; and (b) the amendment is supported by a simple majority of the citizens voting in the referendum.  

It is at the last stage that if the draft bill if bad that the majority population could defeat it. Thus 10 million voters of the 14.3 registered voters need to oppose the referendum at the starting process but at the end. 

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