DR. HESBON HANSEN: Stop Fearing Referendum Talk: Kenya’s Constitution Anticipates Change

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We live in a deeply globalised and mediatised world where ideas travel rapidly, borders are increasingly porous, and public opinion is shaped as much by digital platforms as by formal institutions. The global and the local constantly interact, producing what scholars describe as glocalisation—global ideas taking local form, and local issues acquiring global resonance. In such a context, political ideas, constitutional proposals, and reform agendas are no longer confined to elite spaces; they circulate widely and are contested in real time.Kenya, which prides itself on being a maturing democracy, operates a presidential system modelled largely on the United States, despite its colonial inheritance from Britain. It is therefore neither strange nor improper to draw lessons from the American constitutional trajectory. The US Constitution was ratified in 1788, and within just three years—between 1788 and 1791—the first ten amendments, collectively known as the Bill of Rights, were adopted. Yet constitutional change in the US did not stop there. Over more than two centuries, the Constitution has been amended only 27 times, underscoring an important reality: constitutional reform, even in long-established democracies, is normal, deliberate, often slow, and occasionally fast—depending entirely on context.This reality places a responsibility on all of us. We are, in one way or another, content producers. Today, many citizens command audiences comparable to traditional media outlets. Such reach demands more than emotional persuasion or ethical posturing; it requires depth, clarity, and a willingness to explain—not merely assert—positions on matters of public importance.It is within this frame that debates around constitutional change—whether the BBI process yesterday, the NADCO report, or Prime Cabinet Secretary Musalia Mudavadi’s recent proposal for a referendum alongside the next general election—should be situated. These are not matters for emotional discourse but for serious, informed, and robust engagement.Mudavadi’s proposal has triggered anxiety in some quarters, but it is critical to distinguish agenda-setting from constitutional rupture. Floating the idea of a referendum does not amend the Constitution; it merely initiates debate. It is both naïve and intellectually lazy to argue that such discussion should be shut down simply because referendum laws are not yet in place. Those laws can—and must—be debated and developed in advance, precisely because the Constitution itself anticipates future amendments through referenda.To allay fears of political mischief, Kenyans must remember that the Constitution of Kenya 2010 is deliberately self-protective. Article 255 clearly outlines matters that must be subjected to a referendum, including the supremacy of the Constitution, the sovereignty of the people, national values, the Bill of Rights, presidential term limits, judicial independence, constitutional commissions, and the structure of devolved government. Articles 256 and 257 then establish two tightly regulated amendment pathways: the parliamentary initiative and the popular initiative. Both routes are procedurally demanding, participatory, and legally constrained.The Supreme Court settled these questions decisively in the BBI judgments. It affirmed that the Constitution belongs to the people and that constitutional amendment is not a casual political exercise. It must be anchored in public participation, civic education, and strict adherence to constitutional procedure. Crucially, the Court clarified that the popular initiative must be genuinely people-driven—not an elite project disguised as public will. We cannot selectively redefine what was right or wrong based on who holds power at a given moment. As Kant’s categorical imperative reminds us, principles must be applied consistently, not opportunistically.Seen through this lens, there is little cause for alarm. Mudavadi has proposed an idea; he has not rewritten the Constitution. Whether such an idea survives depends entirely on constitutional compliance and the ability to persuade citizens on merit. And this leads us to the heart of the matter: a referendum is a political process, and political processes are inherently contestable. Contestation is not a defect; it is the essence of democratic choice.Unfortunately, Kenya’s constitutional debates—past and present—have often been reduced to empty slogans: support or reject. This framing strips constitutional politics of substance and allows ethnic mobilisation to take centre stage. The result is a politics of “us versus them”, where issues are marginalised and citizens are mobilised emotionally rather than intellectually. Shouting ourselves hoarse does not deepen democracy; issue-based engagement does.Consider the perennial debate around the number of Members of Parliament. Public discourse tends to fixate on exaggerated cost implications while ignoring institutional design. Enhanced women’s representation, for instance, is not a political indulgence but a constitutional obligation rooted in the two-thirds gender principle—an obligation Kenya continues to struggle to fulfil. Political parties should be legally compelled, and the IEBC empowered, to enforce gender-compliant nomination lists. These are precisely the grey areas that demand sober constitutional debate.At the core lies the question of equitable representation. Disparities between small and large constituencies undermine one of the Constitution’s foundational promises. Representation is not merely symbolic; it translates into constitutionally anchored resources, including the NGCDF, intended to address historical inequalities at the grassroots.Similarly, unresolved concerns around the abuse of nominations, the continued contestation over NGCDF, the role of MPs vis-à-vis separation of powers, and the concentration of executive authority at both national and county levels all require serious interrogation. These are not fringe issues; they go to the heart of accountability, legitimacy, and democratic competition.Even presidential and gubernatorial term limits are not beyond debate. It is intellectually dishonest to assume that any discussion must automatically lead to term extension. What if citizens opted to reduce terms instead? Or abandoned the two-term framework altogether in favour of a single, longer, non-renewable term—say seven years—forcing leaders to focus on legacy rather than perpetual re-election? The Philippines, where the president serves a single six-year term, offers one such comparative example.Whether the subject is BBI, a future referendum, or Mudavadi’s proposal, the principle remains unchanged: let the contest be issue-based. The Constitution has set the guardrails. The courts have clarified the rules. What remains is civic responsibility—the courage to engage thoughtfully, argue rigorously, and decide soberly.