What it takes to hold a referendum in Kenya

Amending the Constitution of Kenya through a referendum is a tedious and costly legislative process that can take more than a year to conclude.

Conducting a referendum through a popular initiative requires input from members of the public, county assemblies and both Houses of Parliament before the President assents.

Under existing laws, a referendum can only be conducted if the proposed amendment relates to:

(a) the supremacy of the constitution;
(b) the territory of Kenya;
(c) the sovereignty of the people;
(d) the national values and principles of governance;
(e) the Bill of Rights;
(f) the term of office of the President;
(g) the independence of the Judiciary and commissions and independent offices;
(h) the functions of Parliament; or
(i) the objects, principles and structure of devolved government.

If a constitutional amendment is initiated through a popular initiative, the promoters must collect at least one million signatures from registered voters. Not more than one-third of the signatures may come from a single county, and voters from at least half of the counties must be represented.

The signatures must be submitted to the Commission in the prescribed form and within the specified timelines. Upon receipt, the Commission is required to verify that the initiative is supported by at least one million registered voters, satisfies the criteria set out in the law and meets the requirements of Article 257 of the Constitution. The Commission then submits the draft Bill to each county assembly for consideration within three months.

The draft Bill, together with the names and signatures of the supporters, must be made public. If the Commission finds that the requirements of Article 257 have not been met, it will declare the draft Bill unsuccessful and will not forward it to the county assemblies.

If approved by a majority of county assemblies, the Bill is introduced in Parliament. Parliament must publicise the Bill and facilitate public participation before passage. If the Speakers of the two Houses do not receive a response from a county assembly within three months, the Bill is deemed not approved by that county assembly.

If one or both Houses of Parliament fail to pass the Bill, it lapses if it does not relate to matters specified under Article 255(1) of the Constitution. However, if it relates to matters listed under Article 255(1), the proposed amendment must be submitted to the people through a referendum.

Once the Bill is passed by both Houses, the Speakers jointly submit it to the President, who then directs the IEBC to conduct a national referendum within ninety days. The Commission conducts the referendum and, within seven days of declaring the results, certifies to the President whether the Bill has been approved.

The President must assent to the Bill within thirty days of its approval. For a proposed amendment to be approved, at least twenty per cent of registered voters in each of at least half of the counties must participate in the referendum, and the amendment must receive a simple majority of votes cast.

The entire referendum process through a popular initiative, from inception to implementation, takes more than twelve months and may be further delayed by legal challenges.