DRAFT TO WAKO

Attorney General Amos Wako will receive the proposed Constitution from Parliament Wednesday morning, bringing the country a step closer to the national referendum.

The Clerk of the National Assembly, Mr Patrick Gichohi, said at Parliament buildings, that the brief handover ceremony will be done to certify that the draft submitted to the House was still in its original form.

“What we are doing today (Tuesday) is verifying that the report is as we received it from the Committee of Experts,” said Mr Gichohi.

Mr Wako will have the next 25 days to publish it. The Constitution of Kenya Review Act (2008) bars the AG from making any alterations to the document and is required to publish it by May 2.

The Act reads in section 34(2); “The Attorney-General shall not effect any alteration to the draft Constitution, except for editorial purposes, in consultation with the Parliamentary Select Committee.”

Mr Wako’s changes to the Bomas draft in 2005 were one of the reasons cited for its rejection after the alterations were rejected. The AG may choose to publish the draft earlier than May 2, bringing the referendum date closer.

The conduct of the referendum is stipulated in the Review Act and Section 47(A) of the current constitution.

When the proposed constitution is published, the Interim Independent Electoral Commission will announce the referendum date, which should come 60 days after, latest July 2. The electoral body is also required to, within 7 days, to frame and publish the referendum question in consultation with the PSC.

The Act in section 37(3) reads; “The question to be submitted to the referendum shall require the voter to indicate whether the voter approves or does not approve the Proposed New Constitution and shall be so framed as to require the answer “Yes” or the answer “No”.”

Fourteen days after the question is published, the IIEC will announce the day on which the referendum is to be held, the polling time and the campaign period. On the same day, the IIEC will suspend any registration of voters which is currently taking place.
The Committee of Experts will after the publication of the draft, embark on 30 days of civic education to educate the public on the proposed constitution.

The Review Act suggests that the Government should not be involved in the civic education and requires the CoE to engage “non-state actors” in the process.

The law also says that the provincial administration should “co-operate with and provide support to the Committee of Experts and non-state actors providing civic education on the draft Constitution”.

The country, according to the time-line specified in the Act should expect the referendum on the new constitution by latest July 2. This will be the expiry of the 90-day period for the referendum preparation after parliament passed the document on April 1.

Section 47A(5b) says that the proposed laws can only be passed after acquiring 50 per cent of the votes cast and 25 per cent in five of the eight provinces. The IIEC is required by the Review Act to announce the results within two days, which will be latest July 4.

Any person who wants to challenge the referendum result will be required to petition the Interim Independent Constitutional Dispute Resolution Court within fourteen days. The petitioner is then required to give notice of the petition to the AG and the IIEC within seven days.

“The petitioner shall within seven days after the petition is made deposit two million shillings with the court as security against costs. If security is not given, the petition shall be dismissed,” the Act reads in part.

The IICDRC is required to within 14 days dismiss the petition, declare the published result to be incorrect, order the IIEC to repeat the polling in any place or places or annul the result of the referendum.

If the new constitution passes the referendum test, President Kibaki has a two-week window to promulgate the new constitution and set the ball rolling for its implementation. Not all the provisions of the new constitution will come into effect immediately.