Senators, court case now stand in the way of third referendum

Monday, May 10th, 2021 00:00 |
BBI co-principals, President Uhuru Kenyatta (left) and Opposition leader Raila Odinga. Photo/PD/FILE

The vote to amend the constitution through a referendum is now only one step away with the passage of The Constitution of Kenya (Amendment) Bill 2020 by the National Assembly.

And with the expected passage of the Bill by the Senate this week, the only thing standing on its way is a case pending in court.

A five judge-bench of justices Chacha Mwita, Janet Mulwa, George Odunga, Joel Ngugi and Jairus Ngaah have retreated to write the judgment after the petitioners and the defendants completed their submissions.

Law Society of Kenya (LSK) president Nelson Havi representing BBI petitioners David Ndii, Kenya National Union of Nurses (Knun), Thirdway Alliance, 254Hope, Justus Juma, Moraa Omoke, Isaac Aluochier and Muhuri said they expect to be given a notice of the judgement soon.

“We are waiting to be given notice on when the judgment will be issued,” said Havi.

Handshake partners

The judges had ordered the Independent Electoral and Boundaries Commission (IEBC) against conducting or preparing for a referendum on the Bill before the matter is dispensed with.

National Assembly Speaker Justin Muturi on Tuesday last week ruled out amendments to the Bill, putting an end to the debate on whether to make changes to it or not.

Muturi told the House that making amendments to a popular initiative would negate the will of the people.

The passage came after President Uhuru Kenyatta and Opposition leader Raila Odinga urged MPs to shelve their reservations and pass the Bill, setting the stage for a referendum later in the year.

In a joint statement, the Handshake partners noted that the BBI Bill had gone through the process provided for in the Constitution.

“We are making a joint appeal to members of the National Assembly and the Senate to join the 3,188,001 Kenyans who supported the Bill and the 44 County Assemblies who approved it, in upholding what represents the hopes and aspirations of all these who participated in the various public forums seeking long term solutions to this country’s problems,” they said.

The passage of the bill brings to an end the protracted debate on the amendments that started with the collection of signatures from the public.


During the debate at the County Assemblies, 44 of the 47 approved the document which was later introduced to both National Assembly and the Senate.

Once the President asks IEBC to hold a referendum on the receipt of the Bill from Parliament, the commission has 90 days within which to hold a referendum.

However, the Constitution does not say how long Parliament should take, after passing the Bill, to pass it on to the President or how long the President will take once the Bill is on his desk.

The Constitution in article 257 (8) states that a Bill under this Article is passed by Parliament if supported by a majority of the members of each House.

“If either House of Parliament fails to pass the Bill, or the Bill relates to a matter specified in 255 (1), the proposed amendment shall be submitted to the people in a referendum,” reads part of article 257.

Passing the bill in time for next year’s General Election is one of the biggest challenges facing Uhuru and Raila.

BBI co-chair Dennis Waweru has been confident that the BBI process will sail smoothly all the way to a referendum. 

“To those few who think they can successfully oppose this process, we want to tell you that the train has left the station,” said Waweru.

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