The framing of the referendum question(s) is shaping up as the next battlefront, with Deputy President William Ruto's camp suggesting each contentious issue be voted on separately.
Their argument is that to avoid throwing out the baby with the bath water, voters should be allowed to cherry pick so that popular proposals are not sacrificed while railroading an entire document with offensive clauses.
This would appear to have been what the DP alluded to at the weekend, when he spoke about Kenyans being offered "real choices," a narrative his allies sustained yesterday by pushing for a clause-by-clause vote on disputed issues.
That would essentially entail the referendum being framed around numerous questions that voters will determine, a suggestion pro-Building Bridges Initiative (BBI) promoters flatly rejected, saying, it will be either a vote to uphold or reject the draft constitutional amendment Bill in its entirety.
"I've a constitutional duty to assist my boss, the President. We've made improvements to BBI post Bomas. Now working on consensus for Kenyans to have real choices to decide/vote while avoiding yes/no/all/nothing division. We avoided lose-lose, we can overcome win-lose to achieve win-win," the DP wrote on Saturday.
Yesterday, he added: "It's never too late to do the right thing. Tremendous progress achieved. Consensus on remaining issues and process so as to have non-divisive vote best option." Given the promoters of BBI are already collecting signatures -- by yesterday the BBI secretariat said they had 1.5 million, more than the requisite one million required for verification by the electoral commission -- the window for amending the report has shut, which then would appear the last option for the DP's camp is separating referendum questions.
Yesterday, Nandi Senator Samson Cherargei, the DP's ally, insisted that whereas some positive amendments had been made to the Bill, others were not pro-Wanjiku, and it would flop should there be no consensus, he warned.
Approve good clauses
Mr Cherargei argued it's not right to force Kenyans in a 'Yes-No' contest. The framing of the referendum question, he said, should give Kenyans a chance to approve good clauses while rejecting the bad ones.
"The Constitutional Amendment Bill, 2020 should be voted on clause-by-clause to separate chaff from wheat. This shall give opportunity for Kenyans to choose what they are comfortable with in line with the state of the economy," Mr Cherargei said.
He went on: "But if it's voted on in its entirety without consensus, it shall flop. The BBI document has failed to meet the aspirations of all Kenyans."
Tharaka Nithi Senator Kithure Kindiki, another Ruto ally, had earlier told the Nation neither side can claim to determine how the vote will be conducted as yet. However, he said the best way for the referendum is to vote on each issue.
"...there is no legislative requirement or guideline on whether we will have a single-vote referendum or a multiple question, clause-by-clause. The details are to be determined by a referendum law, which we do not as a country have yet," Prof Kindiki said.
Two National Assembly teams have been asked to present a harmonised draft of a referendum law for Parliament to consider, which will guide the conduct of the national vote.
The Elections Act of 2011, which governs the conduct of a referendum, albeit inadequately, provides for either one referendum question or multiple questions framed by the Independent Electoral and Boundaries Commission (IEBC).
Prof Kindiki, a former Senate deputy speaker, says the ideal scenario would be for Kenyans to discuss the BBI document further, and agree on proposals that are not contested, amend those that are contested, and only remain with very few that are contested.
The creation of the office of Prime Minister, the appointment of MPs as ministers and the inclusion of technocrat ministers as ex-officio MPs is an issue that requires a referendum to amend the Constitution.
The other touches on the independence of the Judiciary being the proposed change to the Judicial Service Commission by creating the office of the Judiciary ombudsman.
A proposal for a bloated Parliament has also sparked a storm.
Two other issues that would have required a referendum to amend the Constitution but have since been shelved are one on Chapter 15 constitutional commissions (the initial replacement of National Police Service Commission with an executive-dominated Kenya Police Council) and another on the principles and structure of devolved government (transfer of Nairobi county functions to national government).
Yesterday, IEBC Chairman Wafula Chebukati did not respond to our inquiries on the possibility of multiple referendum questions.
Mr Bobby Mkangi, a member of the defunct Committee of Experts that wrote the 2010 Constitution, said generating multiple referendum questions was possible but warned it would require high logistical planning.
"The logistics of that, even just organising the voting, the preparations towards that and also civic education, would be quite cumbersome," he said.
However, Mr Mkangi noted that the law does not disallow multiple choice referendum questions. "It depends on how a Bill is formulated. For a multiple choice one it needs very few questions."
He added the rider that promoters of a referendum Bill have a say in formulation in the manner they present the proposed law to the IEBC.
"However, the process of amending the law does not stop. Somebody else can begin the process and present it to the IEBC as they so wish," Mr Mkangi said.
DP Ruto's spokesperson David Mugonyi did not, however, give a clarification as to the nature of the consensus Mr Ruto was clamouring for especially given signature collection is ongoing.
But allies of President Kenyatta and ODM leader Raila Odinga drew yet another line in the sand on the referendum debate, saying, Kenyans will have a chance to accept the Bill as it is or reject it in entirety with no option of voting on each issue separately.
BBI steering committee joint Secretary Paul Mwangi, vocal Jubilee vice-chairman David Murathe, ODM Secretary-General Edwin Sifuna and Senate Minority Leader James Orengo said the proposals to amend the Constitution will go to Kenyans in a plebiscite in form of a Bill, with citizens required to either vote Yes or No.
"It will go as a Bill for the amendments since it proposes amendment of different sections of the Constitution. It is either you support the Bill -- with all the recommendations or not. There will be no two or more questions," Mr Murathe said.
"In a referendum, there is no option of putting each of the different clauses to a separate vote. Just like we enacted the Constitution in 2010, it was just one question. If you have multiple questions, you will have a scenario where others are rejected and others are passed. For BBI, the Referendum Bill is the question and Kenyans will have to vote either Yes or No on it," Mr Orengo said.
Mr Mwangi explained that separating the questions might mean further marginalising the minorities.
"Constitutions are about negotiating and balancing. Tearing up the document into single issues removes the balancing and puts minorities at risk of not having any of their interests taken care of because they'll never have the numbers to carry those through as independent issues," Mr Mwangi said.
Mr Sifuna said the law "is that the Bill is voted on, approved or rejected as a whole."
Amani National Congress Leader Musalia Mudavadi said how the referendum question will be framed is the domain of the electoral body. "We cannot advise them on how they should do it as IEBC is independent and are the ones who will independently frame the question."