The right to a referendum

ELIUD PHOTOBy Eliud Owalo

According to the 1776 American Declaration of Independence; ‘When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation’.

‘We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness’’

These are the immortal words enshrined in the American Declaration of Independence of 1776. The text of this declaration closely resembles the words and intent of the framers of the Kenyan Constitution in Article 1 (1) in which it was envisioned that ‘all sovereign power belongs to the people of Kenya…and the people may exercise that right either directly or indirectly through elected representatives. One such form of exercise of this sovereign power of the people is through a referendum.

Since time immemorial, it has been the tendency of man to have a say on how he is ruled or governed. So that besides periodic elections to choose his representatives, in many a mature democracy, referenda also known as plebiscite remains the ultimate tool in arriving at weighty decisions.Derived from the Greek word refero, it fundamentally means “bringing back;” that is bringing back the question to the people. Referendum usually constitutes two choices but multiple choice options are not uncommon.

In Australia, a referendum held in 1977 to determine the national anthem allowed citizens four choices. New Zealanders went a notch higher when in 1992, they held a five choice referendum on their electoral system. Back home, the framers of the Constitution allowed an elaborate provision for Referanda. The last time I checked, we were some of the most pro – Wanjiku (citizen) democracies. So much so that we were told, rather incredulously, that you can never birth a constitution by voiding a referendum!

Probably fully aware of the possibility of subjective self interest among elected leaders, a proviso was made for circumventing parliament, should need arise. Let’s calm down, shall we, and go to Article 257. Armed with one million signatures we are told, one is good to go in initiating a popular (people led) constitutional amendment.We are allowed at Article 257 (2) to proceed on the basis of general suggestions. Thereafter, the promoters are expected to beat down these suggestions into a draft bill.

The thorny issue of the Independent Electoral and Boundaries Commission aside, should parliament fail to pass a draft referendum bill presented to it vide Article 257, the question (s) shall be submitted directly to the people. The provisions of Article 257 (4) and (5) that mandates the Independent Electoral and Boundaries Commission may be circumvented by forming a constituent college or assembly similar to the one that brought together the framers of the American Declaration of Independence and armed with the dictates of Article 1 (1) that donates a direct right or exercise of sovereign power of the people, The United Nations (UN) may be called upon to conduct such a referendum.

When a society faces problems for which its elected leaders seem not able to resolve, recourse to the people is the only option. Of course faltering democracies have a morbid fear of Referanda.Our constitution even foresaw a situation where we can have a repeat election in the absence of a clear winner. So much so that the noises about putting the country in an election mood so soon are cheap diversions. Apart from the obvious benefit of focusing our collective attention on certain issues, Referanda are crafted in a manner that brings them closure to national debates. Our European brothers are probably the most referendum tolerant. The nature of their homogeneous economic experiment called the European Union means that there is always need for questions to be put to vote in various countries regarding any significant development at Brussels.

Kenya hobbles from one problem to the other due to our inability, nay refusal to look at problems in the face and enact painful solutions. The post – independence constitutional amendments (mutilations) meant we had to go back to the drawing boards. Barring various Lacunas, the pussy footing around cardinal issues like devolution, the provincial administration and land reforms mean that people must grab back the initiative from the ruling class. If as in the classical understanding, democracy be rule by the people, then we should not fear a referendum.

If through a referendum, consensus would be struck around a few sticky issues, who would fret about the cost? A cursory look tells us that even the result of a taunted election lets us avoid war for the simple reason that it bears the dubious stamp of choice. We cannot lay claim to development politics while a sizeable chunk of our population is left out and is a perpetual victim of cheap lectures from the podium of tyranny of numbers. When the legendary musical group Abba sang “one of us is crying,” it was a poignant reminder that those lyrical harmony of their songs were in danger of degenerating into a discord if something was not done quickly to sooth the sulking member of the team.

Consultative government which puts people at the centre of the democratic promise is the watermark of our Constitution. Infact, the Bill of Rights becomes stale the moment you hinder people from exercising their right to choose. The apogee of choice in free arrangements is the right to a referendum.

Our fundamental rights belong to each individual and are not granted by the State. Such rights are inherent and inalienable and entrenched in the Constitution. The state is bound to give priority to the widest possible enjoyment of rights and fundamental Freedoms. Development fundamentalism has failed in Africa. The warped notion that security means an iron grip over the hopeless citizenry has failed dismally. A relook at the philosophical rationale for security would go a long way towards securing all of us sustainably.

A starting point is allowing Wananchi an unfettered voice on how they should be governed. A magic toolkit in this is the super highway called referendum. And there is the small matter of everybody being bound to respect, uphold and defend the constitution.

The writer is a Management Consultant based in Nairobi.

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