Will there be a referendum or not? The BBI dilemma

As the country awaits the release of the Building Bridges Initiative (BBI) report on Tuesday this week, implementation of proposals in the much-awaited document could run into trouble for lack of referendum laws in place.

Possibilities of the report recommending a referendum are highly likely, but going by the difficulties in amending the 2010 Constitution, a proposal requiring a referendum are likely to encounter hurdles.

Majority Leader Aden Duale says since the promulgation of the constitution in 2010, the Executive has not presented legal proposals that could oversee a referendum.

According to Duale, to kick-start the process of a referendum, Parliament needs to enact a referendum law.

“To conduct a referendum there must be a referendum law. What the IEBC has been using in receiving signatures for Okoa Kenya and Punguza Mizigo is the Election Act of 2011,” says Duale.

Minority Whip in the National Assembly Junet Mohamed, however, differs with Duale, claiming the 2005 referendum was conducted without a referendum law.

“We have held a referendum before without any law… in 2005 and the results were taken as endorsed by the people. There is no law that bars holding of any referendum. The Elections Act also has provisions on referendum under sections 49 and 50 law. That is sufficient for now,” said Junet.

Pushing through the report without  a referendum law could open floodgates for litigation.

“In the absence of a referendum law, those who will oppose a referendum have an added advantage to go and use the corridors of justice to raise legal issues,” added Duale.

As the BBI team prepares for Tuesday, sources told Citizen TV that the task force has recommended creation of the position of prime ministers and two deputies besides the current position of the president and deputy president.

“If it doesn’t have the introduction of a parliamentary system of government through a referendum as provided for in Article 257, I can tell you from where I seat and come from, that BBI will not have any meaning,” Duale further stated.

According to the House leadership, to heal the referendum shortcomings, proposals by Ndaragwa lawmaker Jeremiah Kioni and one from Endebes MP Dr. Robert Pukose must be prioritised for debate before parliament breaks for a long recess in three weeks time.

With the absence of the referendum law, it will take at least six months to put the law in place, and another 12 months to complete the processing of a referendum question.