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{
    "id": 1046923,
    "url": "https://info.mzalendo.com/api/v0.1/hansard/entries/1046923/?format=api",
    "text_counter": 87,
    "type": "speech",
    "speaker_name": "Rarieda, ODM",
    "speaker_title": "Hon. (Dr.) Otiende Amollo",
    "speaker": {
        "id": 13465,
        "legal_name": "Paul Otiende Amollo",
        "slug": "paul-otiende-amollo"
    },
    "content": "Clause 12 talks about the chief agent. The Committee recommends that this clause be deleted. Other than forcing everyone to be led by one person, in supporting or opposing, it gives that person some liability and responsibility. It will give that one person the responsibility to take care of all those who oppose if it is a No Committee or all those who support if it is a Yes Committee. There is no way one individual can take responsibility in the entire country without having a mechanism of controlling those people. Therefore, that particular clause is recommended for deletion. Clause 13 talks of the cost for a Referendum. This clause is recommended for deletion for a simple reason. That clause as drafted initially was contradictory. On one hand it says each referendum committee will bear its own cost and on the other it talks of if public money is to be used in a referendum. If the committees are bearing their own costs, then there is no public money that will be used. Therefore, there is no way you can have a clause that is internally contradictory. That is why it has been recommended for deletion. Clause 14 talks of the approval threshold. This particular clause is also to be deleted in keeping with the Constitutional Implementation Oversight Committee (CIOC) draft. The deletion is for two reasons: First, in so far as it talks of the need to be supported by 20 per cent of the registered voters in each of at least half of the counties. Those are at the exact wordings of Article 255(2) (a). We found that there is no need for this Bill to repeat the exact wordings that are already in the Constitution. I had already explained about the question of options. Clause 15 is what lawyers call inherent powers for the courts, but in this case we are giving it to the Commission. Clause 15 gives the Commission general powers to take administrative measures to ensure successful conduct of a referendum. In other words, there should not be any point when the Commission says it cannot move because a law does not make certain provisions. At that point, the Commission should be able to invoke the general rules and procedures for elections or such administrative measures as would enable successful conduct of a referendum. Clauses 16 to 32, without discussing them individually, speak to a petition challenging a referendum. One of the things—and this is a matter of principle and we have spoken to it—are that courts should generally be very reluctant to interfere with the legislative role of Parliament. In the same way, courts should be very reluctant to interfere with the elective will of the people. But courts can come in after the process and examine its legality. In this respect, it is contemplated that one may challenge the results of a referendum, because that is the democratic expectation. We realise that election petitions, including presidential election petitions, have limited time. But as this Bill is now, one can challenge an outcome of a referendum even if it is supported by 99 per cent of Kenyans. Because there is no time limit, and you know the mischief in our courts sometimes, a case can take five years in the courts, which would mean a sabotage of the democratic will of the people. Therefore, Clauses 16 to 32 enable one to challenge the outcome of a referendum, but it does not allow those who frivolously challenge such results. The challenge must be well founded and there are conditions to ensure that a challenge is well founded. If the outcome is challenged, the case should be determined by a bench of at least three judges, so that you do not have one judge in some far-flung town like Oyugis sabotaging the will of all Kenyans, whether it is a yes or a no. Thirdly, the clauses require that such challenge must be filed within 14 days. That is the amendment that will be brought to the House. The initial provision was 30 days. We thought the will of the people should be ascertained as soon as possible. Once the result is challenged, the amendments that will be brought to the House state that the case must be decided within 30 days. The initial provision was six months; we thought that was too long. We recognise that you cannot The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor."
}