, 10 tweets, 3 min read Read on Twitter
@RailaOdinga says we will have a referendum this year to change the constitution. I do not think so. In fact we wont have constitutional amendments any time soon. These are the TECHNICAL reasons why
1.We need a legal and functional IEBC. IEBC formulates the question(s) for a referendum after parliament passes the amendments. IEBC also organizes and manages referendum vote. With three Commissioners (all men) left we don’t have a legal @IEBCKenya
2.A const amendment can't be rushed thro parliament the way it is done with unpopular statute laws. Timelines and processes of amending the constitution are edged in stone. To change those processes and timelines requires an entire process of amendment that includes a referendum
3.And whatever the Building Bridges International (BBI) has been doing does not count towards any of the mandatory constitutional timelines or take away the obligation of parliament to seek public views on amendments. To the constitution, BBI is inconsequential, an illegality!
4.RAO & Uhuru may not even have the 2/3rd support to force a const amendment thro Parliament, especially without Ruto. Either way, on this one there will be a sizeable and stubborn minority that will make the parliamentary part of the process not just another walk in the park.
5.Courts will have a lot of say on whether we have a referendum, how & when. RAO and Uhuru have already told us that the Courts are very slow. With litigation on amendments sprouting from every corner, it is then they will know Courts don’t work on the basis of an electoral cycle
6.Provisions on amending Const. require clarification from court first. How many questions are possible in a single referendum? e.g. Can there be one question based on omnibus amendment proposals or should it be a question for each amendment proposal? There are more questions ...
7.Courts can still declare an amendment that has gone through the entire process (including a referendum) unconstitutional. So if RAO & Uhuru botch the process with impunity – as I suspect they will – this will be a sure way to invite a Court process and potential nullification.
8.Courts can still find a const amendment is unconstitutional for interfering with basic const structure. In other words, there are things in the constitution that can't be changed unless the constitution is overhauled entirely. No doubt some aspect of devolution are part of that
A future THREAD will discuss why it is pragmatically impossible to amend the constitution now.
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