CHARLES WAHOME GIKONYO / REFERENDUM
We've never conducted one, but why not?
This is what is commonly known as a referendum. But why should all Kenyans vote on the new constitution?
It is important to bear in mind that out of the 600 odd delegates, 222 are sitting Members of Parliament. My submission is that Kenya's destiny cannot be left in the hands of those delegates.
The accusations made by Kenyans against both the MPs and the delegates as a whole are myriad, and it is not clear whether either can be trusted.
In the late 1980s and 1990s, whenever a call was made for a referendum, many leaders, including President Moi and the Attorney-General, quickly pointed out that our Constitution did not provide for one.
According to the then Attorney-General Mathew Guy Muli, we could not hold a referendum simply because our constitution was silent on the issue.
According to others, the various rallies conducted by President Moi while campaigning for a serious national issue, amounted to a referendum. Yet to some others, the consultations conducted by the Kanu Review Committee of 1990 did more than a referendum can.
In my view, with or without a constitutional provision, a referendum should be held to approve all legislative actions and matters of national concern.
To this end, the controversy surrounding this important device has boiled down to this: Should we have a constitutional provision for a referendum? Can a referendum, with the sanction and force of law, be held even without a constitutional provision?
If so, have we metamorphosed to a level where we can hold referenda before any constitutional or legislative measure is carried out?
Applied to the constitutional review going on, should it be mandatory that before the new constitution is adopted, it should be subjected to a referendum?
None of those who have been crusading either for or against a referendum have come up with cogent legal justifications for their positions.
I am persuaded that the controversy surrounding the issue stems from ignorance about this important constitutional device. None of those crusading for or against this device have ever bothered to tell Kenyans what it actually is.
What is a referendum? The term "referendum" lacks any precise definition. But for our purposes, an examination of the term from the viewpoint of the definitions given by Blacks Law Dictionary will suffice:
"The process of referring to the electorate for approval a proposed new State constitution or amendment (constitutional referendum) or a law passed by the Legislature (statutory referendum)."
This definition is narrow in the sense that it views a referendum in constitutional and statutory terms. Referenda are held to determine important social, political and economic issues.
Whereas this definition is acceptable, the one by Taft W. H.. in his book, Popular Government, is preferable as it seems to be all-encompassing.
He describes a referendum as the reference of an issue to a decision by popular election. This definition goes far beyond any sectional limitations. It covers all fields of life – political, social and economic. Any issue in those fields subjected to the vote of all citizens can be the subject of a referendum.
For all practical purposes, a referendum is a direct check on the action of legislators. It is an ultra-democratic device which extends the legislative process far beyond Parliament to the electorate.
More often than not, the device is used by voters to check and veto legislative action in matters of law. It is really meant to explode the myth behind representative government. In many cases, the alleged representatives do not represent people's views. Hence the need to by-pass them.
Before any legislative action is adopted, it should, therefore, be submitted to the people to determine by a majority vote whether it is to be finally adopted and promulgated.
Whether Kenya has metamorphosed to this point is not for us to decide. Which way then?
Let every Kenyan rise and say: It cannot be either this way or that; it must be this way. Let every Kenyan make a value judgment.
Constitutional history reveals that there has never been referendum in Kenya. What was so erroneously labelled as a referendum over the Criminal Law (Amendment) Bill of 1971 was a series of intimidatory political rallies characterised by a chorus of responses. No attempt was made to present the case for or against the death penalty. The public opinion constantly referred to were the sycophantic answers relating to questions asked by President Kenyatta in public meetings.
These meetings were, of course, held in a few centres, yet they were taken to have been of a representative character Claims that "the people in the country give full support" could very well have been right, but they were not supported by any empirical evidence.
In the real meaning, no referendum was held to approve the Criminal Law (Amendment) Bill of 1971. Apparently, the calls for a referendum are a development of the 1980s. Thus, the idea is new in Kenya.
Mr Gikonyo is an advocate of the High Court and a former Law Society of Kenya official.
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