Ruto’s big referendum dilemma in bid to craft an office for Raila

The National Assembly in session in October. The proposed legislation, which already has the government’s backing, is yet to be introduced in Parliament. 

Photo credit: File

President William Ruto’s Kenya Kwanza Alliance is facing a big headache to avoid a costly referendum in its bid to create a powerful office for Azimio la Umoja One Kenya Coalition leader Raila Odinga.

According to legal experts, the creation of the Office of the Leader of Opposition, as currently proposed, is set to affect the structure of the Executive and composition of Parliament, both protected clauses in the Constitution and that demand that any amendment should be approved by the people in a popular referendum.

The proposed legislation, which already has the government’s backing, is yet to be introduced in Parliament, although President Ruto has already told his troops to support it when it is, saying, it will provide a clear structure on how the opposition will play its oversight role. 

The President is, however, said to be keen to avoid a referendum in the creation of the office. Constitutional lawyer Bob Mkangi said the creation of the office goes beyond “insertion” of the office in the Constitution because it significantly affects the broader governance system, which contributes to how Parliament is structured.

“Constructively, it touches on the sovereignty of Kenyans and affects how Parliament operates. These are two of the 10 areas that Article 225 of the Constitution demands for determination through a referendum,” Mr Mkangi, who was a member of the committee of Experts that drafted the Constitution, said. The 10 areas include matters touching on the territory of Kenya, sovereignty of the people, Bill of Rights, term of office of the President, functions of Parliament, principles and structure of devolved government as some of the areas that must be subjected to a referendum if any changes are proposed.

Rarieda MP Otiende Amollo told the Nation that creation of such an office would result in changing the composition of Parliament, hence requires a referendum. 

“Any discussion on changing the Constitution should go beyond creating one office and look at certain things holistically. These were some of the good things contained in the BBI,” Dr Amollo said, referring  to the Building Bridges Initiative, a constitutional amendment backed by former President Uhuru Kenyatta and Mr Odinga, and which was quashed by the courts.

According to some of the proposals in the Bill that are yet to be publicised, the leader of the official opposition will be allowed to identify and appoint “such staff as shall be necessary for the execution of the said office, whose remuneration, benefits and allowances shall be drawn from the Exchequer subject to the Salaries and Remuneration Commission.”

It also seeks to amend Article 260 of the Constitution to include the office of the leader of opposition under the category of ‘state office’. 

The office, to be funded by the Exchequer, the Azimio team proposes, will have “all such powers and discretion necessary to solicit and mobilise for funding from all sources, including donor funding, to supplement its budgetary allocations to finance its various activities”.

Homa Bay Town MP Peter Kaluma said it was impossible to create the office without the country going to a referendum since the Constitution establishes a presidential system.

“It is impossible. Let the proponents stop wasting their time. I’ll oppose it,” Mr Kaluma said. Pokot South MP David Pkosing said that, while he does not think its creation will require a referendum, the office should be made even more powerful, by giving the holder even more powers.

Nominate persons

This, Mr Pkosing proposes, includes leeway to nominate persons to government bodies like the Kenya Revenue Authority, the Central Bank of Kenya, and independent offices and commissions, including the Independent Electoral and Boundaries Commission (IEBC).

“That office is crucial. It has to go deeper to dividing, say, constitutional commission board membership to reflect party strength. For instance, if a commission is made of nine commissioners, the majority party should name five and the minority side four. This should extend to all big parastatals,” Mr Pkosing said.

However, Deputy Majority Leader Owen Baya said the idea was still at the proposal stage and will be placed before the Justice and Legal Affairs Committee (JLAC) that will collect views on the matter, with the eventual decision on whether or not a plebiscite will be needed.

“It is after these recommendations by the committee and at adoption of the report that we will know whether the amendments will require a referendum or not,” Mr Baya said.

National Assembly JLAC chairperson George Murugara told the Nation that the creation of the office will not interfere with the protected matters in Article 255 of the Constitution. The Tharaka MP says the Constitution recognises the minority side in Parliament and establishing an office does not warrant a plebiscite.

“We are not touching the structure of government. What we will be doing is recognising the position. Changing the structure of government might be something like this; the Constitution caps the number of Cabinet secretaries at 22. Should the number be increased to 25, that will be altering the structure of government,” he explained.

He said the matter will be deliberated on extensively by leaders across the political divide to agree on how to handle the process without going to the referendum.

“Maybe we will find a way to give it a different title. Maybe we name it as Leader of the Minority Party. The person who will be given this office is not an MP to say that the system has been changed [from a presidential system] to parliamentary or hybrid [one],” he said. Orange Democratic Movement chairman John Mbadi pointed out that the leadership of the opposition is not part of the Executive and does not require a referendum.

Standing Orders

On the intention of the government to support the proposal, Mr Mbadi said:“I may not know their intentions but it was a mistake to adopt a system ignoring the opposition leadership, and BBI was meant to correct this.”

On the proposal of the leader of opposition appearing before Parliament to either address or seek answers on a number of government projects, Mr Murugara said it will only need an amendment of the House Standing Orders, just like the plan to have Cabinet secretaries to answer questions from members.

It is not clear who will sponsor the Bill and it’s not in the Order Paper among those to be tabled in Parliament in today’s special sitting. Mr Murugara said members are still waiting for word from the President on whether it will be a government Bill or whether it will be fronted by the minority party.

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