The referendum question is at the centre of a quiet stand-off between President William Ruto and Azimio leader Raila Odinga’s sides.
Opinion is divided on how to go about implementing the National Dialogue Committee report aimed at settling the 2022 election row.
The point of divergence is the timing of the plebiscite, both sides conceding some of the proposals require a say of the people.
“We confirm two options are available. The parliamentary route and referendum are options,” Justice Committee chairman Gitonga Murugara said.
In the Nadco negotiations, United Democratic Alliance pushed for the entrenchment of the office of Prime Cabinet Secretary.
Azimio also accepted the offer of opposition leader’s office, and pushed for a lucrative package to come with it, including hiring two deputies and staff.
In the concession that ensued, Azimio pushed for a hybrid or parliamentary system to anchor the office of Prime Cabinet Secretary in the National Assembly.
The elephant in the room is whether Parliament can legally embed the drastic changes of governance structure without a vote by the people.
President Ruto, sources familiar with the events say, is uncomfortable with a vote in the immediate term, holding it would charge the country politically.
His top lieutenants have equally maintained that a referendum would remain a last resort should the parliamentary route fail.
Should push come to shove, the Star is reliably told the President and his men have settled for a vote alongside the August 2027 general elections.
Insiders at a joint parliamentary steering said the uncertainty is behind the lack of motivation in the House team.
Two crucial meetings called by the committee to chart the way forward have aborted under unexplained circumstances, exposing tension and divergent views.
While the leaders of the joint Senate and National Assembly teams said they have more time to consider the matter, the failed meetings have raised eyebrows.
The Houses’ Justice Committees have until April 20 to determine whether the country will head for a vote to implement the proposals.
Key members of the dialogue team, when asked whether the referendum question was stirring tensions, said it was too early to tell.
Senate Majority leader and Kericho Senator Aaron Cheruiyot said the referendum question was yet to be discussed in their circles.
“We are waiting for the report of the committee looking at the report. We will decided the way forward when we get there,” he said.
National Assembly Minority leader Opiyo Wandayi said the matter was yet to be decided.
“We are yet to discuss it (the referendum). When we get there, we will definitely consult the people, as is our tradition,” he said.
Azimio troops, however, have expressed the need for a referendum to implement some of the far-reaching recommendations.
During the debate on the report in Parliament, senior counsel Otiende Amollo said a referendum is inevitable.
“As we adopt it, we will require more careful navigation. First, is whether we require a referendum. My casual glance at the Report suggests we will need one in four different areas,” he said.
They include establishing the office of prime minister and the office of the leader of the opposition in Parliament.
Raila cited those two offices and said they must be endorsed by Kenyans through universal suffrage
Also in the proposed amendments is a proposal to extend a single term of the Senate to seven years from the current five, requiring a referendum.
The report also proposes the entrenchment of a Senate Oversight Fund, National Government Affirmative Action Fund and National Government-Constituency Development Fund, also requiring a referendum.
Nadco also recommended changes to the IEBC Act to increase the number of members of the polls commission to nine from the current seven.
In the Nadco report, Azimio recommended that “in a time to be determined, a referendum be held to amend the Constitution with a view to adopting a mixed system of governance that it proposed”.
Experts said that since the proposals would significantly change the structure of government, a vote would be inevitable.
Constitutional lawyer Bobby Mkangi said some of the bills – as proposed, may not escape a referendum, stating that they have significant impact on the governance system.
“I don’t see how they (Nadco proponents) can escape a referendum. They might try to expedite them but there is the risk of their being challenged on the heavy issues,” he said.
Mkangi, who was on the team that produced the current Constitution, said there are certain aspects of the report that can be implemented without a referendum.
“For those touching on the system of governance or sovereignty, it is wananchi who will decide. This is not to mean that changes in Parliament will be trivial,” he said.
The lawyer added that the report has issues with significant effect on the sovereignty of wananchi “who must have a final say”.
Nadco produced nine key bills through which the Raila and Ruto troops want to implement the report.
Among them is an amendment to the Constitution to create the office of Leader of Opposition – with two deputies.
The bill also seeks to institutionalise the office of Prime Minister to play a role akin to that held by Musalia Mudavadi – Prime Cabinet Secretary.