Kenya: AG Roots for Multiple Referendum Questions

26 January 2021

Attorney-General Kihara Kariuki has rooted for multiple questions in one Bill in the planned referendum to amend the constitution through Building Bridges Initiative (BBI).

In an advisory opinion to the Supreme Court in respect to a case filed by Nandi and Kericho county assemblies as well a Makueni county government, Mr Kihara said a Bill that may contain one matter or issue of amendment will present major difficulties.

"The implication for such an interpretation will be that in the event that the people wish to exercise their sovereignty directly to amend various matters in the Constitution, they would need separate bills for each of the matters/issues concerned," Mr Kariuki said.

He added that each of the Bills will have to undergo its own process as required by the Constitution, thus collecting one millions signatures of each Bill and subjecting each of them to the county assemblies, separately, a move that would have serious economic and political costs.

The AG further said there is no legal basis why a Bill to amend the Constitution should be treated differently from other Bills that are considered by Parliament.

No legal support

"Stated differently, we find no legal support for the view that a Bill to amend the Constitution may only be limited to a single matter/issue of amendment," he said

He said Kenya has had two referenda, in 2005 and 2010, and in both cases, the questions were posed in respect of omnibus proposals with multiple issues.

On public participation, the AG said it has to be limited to informing a county assembly's decision to approve or reject the draft Bill, since the county assembly cannot effect changes to the Bill.

He added that the approval is by a majority of the members of the county assembly, present and voting.

Kericho and Nandi MCAs sought the guidance of the Supreme Court on the procedure to be followed while processing a constitutional amendment Bill, under a popular initiative.

Makueni Governor Kivutha Kibwana also sought a similar opinion.

The Speakers of the two county assemblies said it is not clear how a Bill containing multiple and unrelated issues will be voted for at the referendum, and whether it should be voted in an omnibus way or on the basis of multiple questions delineated in respect of each provision or subject matter sought to be amended.

"The applicants believe that the processes relating to processing of a popular initiative Bill in county assembly and Parliament and especially those relating to facilitating and consideration of outcome of public participation, requires guidance from this court," the application reads.

The two counties said they sought the guidance of the apex court especially after facing challenges during the consideration of the Punguza Mzigo constitutional amendment Bill of 2019, fronted by Thirdway Alliance.

Process and procedure

The two counties said while Article 256 of the Constitution, which guides constitutional amendment through a parliamentary initiative, is detailed on procedure of processing a constitutional amendment, Article 257, which relates to popular initiative, seems silent on the process and procedure.

They added that there is no explicit guidance in both the Senate and National Assembly's Standing Orders to that regard.

According to Mr Kariuki, the amendments that require referendum are presented for referendum but those that do not require such are passed once they attain the prescribed majority in Parliament.

"We note that the Constitution does not provide guidance on the issue of the number of questions that a referendum on a Bill to amend the Constitution may have," Mr Kihara said.

In regard to a request by Prof Kibwana for the court to offer guidance on whether the State can initiate a constitutional change through a popular initiative, the Attorney General answered to the affirmative.

State resources

He said the government (national or county), a State organ or a public officer may also use State resources in the process.

During Monday's hearing, the court admitted the Law Society of Kenya as amicus curiae (friend of the court), saying the court was satisfied that the brief will assist them in reaching a fair determination of the issues raised in the case.

"We have furthermore noted that under Section 4 of the Law Society Act, the LSK is mandated to assist the courts and the public in matters relating to the law generally and the administration of justice in particular and is therefore made up of, inter alia, experts in constitutional matters," Acting Chief Justice Philomena Mwilu said in the ruling.

But the court also declined applications by two legal experts, Prof Richard Albert and Prof Yaniv Roznai, to join the advisory opinions as amicus curiae.

This is because they filed their 'amici briefs' out of the time set by the Supreme Court.

The AG had also proposed to the court to halt the cases, pending the determination of about 10 cases which have been filed before the High Court but the position was rejected by the three counties, saying the opinion sought at the Supreme Court is different.

The advisory opinions will be mentioned on February 9 for directions.

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