Constitutional Amendment Through Popular Initiative: Tentative Lessons From the “Okoa Kenya” Campaign

Kenya’s Official Opposition, the Coalition for Reforms and Democracy (CORD), has embarked on a quest to amend the country’s constitution through a popular referendum. Article 257 of the constitution allows for amendments that originate outside of the legislature. All the sponsor of such amendments needs to do is collect one million signatures from among registered voters for the Bill to be considered by each of the 47 country assemblies before it can be introduced in Parliament. CORD collected 1.4 million signatures in a country with a voting aged population of over 22 million. Currently the Independent Electoral and Boundaries Commission (IEBC) is verifying the signatures, along with the suggested amendments that at the moment comprise a draft bill -- the Constitution of Kenya Amendment Bill (2015), also known as the Okoa Kenya Bill. If the bill is passed by a majority of county assemblies, it will be subjected to a popular referendum in the latter half of this year. However, the IEBC’s current funding crisis poses a challenge to the timely holding of a referendum on the Bill -- it is expected to be delayed till November, when campaigns for the August 2017 General Election will already be in full gear.

The Okoa Kenya bill seeks to improve the electoral management and adjudication process in Kenya by requiring greater transparency in voter registration, identification, and in the counting of votes. It also grants the judiciary greater independence, with a view of boosting its neutrality when adjudicating electoral disputes. Other clauses of the bill empower the National Land Commission in the management of the country’s land registries; entrench the Ethics and Anti-Corruption Commission (EACC) in the Constitution; increase the total revenue allocated to the country’s 47 counties; mandate ethnic quotas in public sector jobs; and give constitutional protection to development funds run by legislators at both the national and county levels.

The move by the Kenyan opposition to amend the constitution through a popular referendum offers important lessons on the utility of such provisions in the constitutions of emerging democracies.

On the one hand, popular amendments provide opportunities for Civil Society Organizations (CSOs) and the wider public to originate constitutional amendments in instances when the ordinary legislative channels are not politically feasible (or when members of the political class collude to maintain laws that shield them from vertical accountability). These provisions are therefore key to the preservation of the popular sovereignty of voters. The possibility of popular amendments also serve to check the power of ruling coalitions that may be favored by an imbalance in representative institutions due to malapportionment of seats.

But on the other hand, such provisions come with significant risks to general constitutional order and political stability in emerging democracies. Constitutions are supposed to be hard to amend for a reason. The institutions they create are supposed to have long time horizons, thereby incentivizing political actors to invest in political activities and cultures that allow for the emergence of rule of law. Yet popular amendment provisions create opportunities for populist politicians bent on upsetting the existing institutional balance of power in their favor to capture extra-legislative amendment processes. In addition, by sidestepping existing mechanisms for effecting constitutional change – that is, the legislature – popular amendments implicitly reduce the cost of changing the basic rules of intra-elite political competition. This introduces uncertainty in the elite pacts that are critical for political stability and continued institutional strengthening.

Two important questions follow: (i) how do constitutional popular amendment provisions impact institutional stability?; And (ii) can such provisions maintain their legitimacy when captured by mainstream political parties already represented in key state institutions?

The answers to the first question speak to the dangers of populism. Democratic stability necessarily requires institutional barriers to regular changes of the basic rules of the game (i.e. constitutions), as well as checks on populism. Therefore, by exposing constitutional changes to “every-day politics”, extra-legislative origination of constitutional amendments (under ordinary circumstances) may pose a risk to the very foundations of democratic stability.

The answers to the second question speak to the original intent of popular amendment provisions. Given their extra-legislative character and the notion that they are supposed to preserve popular sovereignty, it is unclear whether popular amendment provisions maintain their integrity when captured by mainstream political parties that are supposed to operate within the legislature. In other words, the potential exploitation of such provisions to circumvent the outcomes of legislative elections may derogate the electoral process itself. Elections should have consequences for both the ruling and opposition parties.

As one would expect, most constitutions have explicit institutional barriers against routine amendments – most of them via super-majority requirements in legislatures. Few, like in Kenya, have provisions for popular amendment. And even when they do, this route is seldom used to change constitutions. The Kenyan case will therefore provide an important lesson on popular constitutional amendment in emerging democracies across the world.

The Kenyan Case

According to Article 257 of the Constitution, after the IEBC verifies the signatures it is required to submit the draft “Okoa Kenya” bill for a vote in the assemblies of the Kenya’s 47 counties within three months of receiving the bill. If passed by a majority of the counties (at least 24) the bill will then be tabled in both Houses of Parliament, where it will require a simple majority in both Houses to pass and become the law of the land. Should either House reject the bill then it will be subjected to a popular referendum. If the bill goes to a referendum, a likely date for the plebiscite – according to the timeline set out in Article 257 of the Constitution – is November 2016, less than a year before the August 2017 General Election.

It is important to note that the Okoa Kenya bill is intentionally designed to trigger a popular referendum. Article 255 of the Constitution delineates sections whose amendments must be approved by voters in a referendum, even after passage by the legislature. These include, all matters touching on the functions of parliament; the independence of the judiciary and state commissions; and the objects, principles, and structure of devolved government. The bulk of the Okoa Kenya bill deals with the IEBC (an independent commission); the independence of the judiciary (by altering the appointment process); and devolved government (by increasing the funds allocated to the counties).

Therefore, the only institutional hurdle that can stop a popular referendum in 2016 is the verdict coming out of the counties. If a majority of the counties reject the Okoa Kenya bill then the process will stop. If the bill clears this stage, Kenyans will certainly go to the polls some time late 2016. At that point the bill’s proposed amendments will become part of the law of the land if passed by a simple majority of total votes cast, on condition that at least 25 percent of registered voters in at least half of the 47 counties participate in the referendum.

It goes without saying that the Okoa Kenya Bill is politically loaded. Part of the reason the opposition performed so well in the 2007 General Election was that it had just defeated the incumbent president, Mwai Kibaki, and his ruling coalition in a referendum vote held two years earlier in 2005. Winning a populist referendum ahead of the 2017 elections would certainly boost CORD’s chances of besting incumbent Uhuru Kenyatta and the governing Jubilee Alliance Coalition (Jubilee). And it is for this reason that the CORD coalition has done its best to ensure that the bill clears it first and most important hurdle: getting passed by a majority of county assemblies.

A critical look at the contents of the Okoa Kenya bill reveals that its main focus is to remake the electoral management body, IEBC, with a view of limiting what it perceives to be institutional biases in favor of the incumbent president and ruling coalition. Since the March 2013 General Election, the leadership of CORD has insisted that, just like in 2007, its flag bearer Raila Odinga was robbed of the presidency in favor of Uhuru Kenyatta. As such, CORD has consistently argued that it will be impossible to have a free and fair election in 2017 without a complete overhaul of the IEBC. Jubilee politicians, on the other hand, have repeatedly dismissed these calls as either a tactical strategy on the part of CORD to change the rules in the middle of game; or worse, a means to preemptively discredit the outcome of the 2017 election with a view of instigating violence that would trigger another government of national unity as did happen in 2008.

But CORD’s claims are not entirely politically motivated. Court documents from the United Kingdom show that senior officials at the IEBC were involved in corrupt procurement practices, dubbed “chickengate”, that may have materially compromised the outcome of the 2013 election due to equipment failure. Several of the officials adversely mentioned in the court documents remain in office, including the Chairman Ahmed Issack Hassan, and will preside over the 2017 election.

It is for this reason that CORD wants the IEBC to be completely restructured – first, to get rid of the implicated officials; and second, to allow explicit political party representation within the ranks of the IEBC. CORD is arguing that political balance within the commission will ensure transparency in the management of Kenya’s elections.

Indeed, the Okoa Kenya bill almost exclusively focuses on the IEBC, with the remaining clauses serving as inducements to the institutional players needed to get it passed. Clause 3, Clauses 7 through 12, and Clauses 15 and 16 target the functions of the IEBC and the judicial process of adjudicating electoral disputes. And in a not-so-subtle nod to members of county assemblies (MCAs) and governors, CORD has proposed a tripling of the share of audited ordinary revenues allocated to county governments from the current constitutionally required 15 percent to 45 percent. The Okoa Kenya bill also proposes an increase of the revenue accruing to mineral-rich counties. They will now keep 20 percent of the revenue arising from the exploitation of natural resources within their jurisdictions – with 15 percent going to the county governments and 5 percent to local communities affected by mining activities.

For the MCAs and Members of the National Assembly (MPs) CORD has proposed to entrench the Ward and Constituency Development Funds in the Constitution. Since 2003 the Constituency Development Fund (CDF) has served as a slush fund used by MPs for development projects in their constituencies with an eye on reelection. And precisely because of its electoral significance, CDF has been very popular among MPs. However, recently a court declared the CDF unconstitutional on the ground that it infringes on the principle of separation of powers. CORD has effectively given MPs a chance to ring-fence the popular fund from any future constitutional challenges, and in so doing induce MPs to support for the entire Okoa Kenya Bill. Modeled on the CDF, the Ward Development Fund (WDF) is a new addition in Kenya’s redistributive developmental expenditures architecture. It is also clearly designed to elicit the support of MCAs for the entirety of the Okoa Kenya Bill. This is particularly important since Kenya’s 47 County Assemblies will provide the first legislative hurdle for the bill.

Unsurprisingly, the Jubilee Coalition has opposed CORD’s specific proposed amendments, insisting that they seek to unnecessarily politicize an “apolitical” -- and therefore neutral -- commission. Furthermore, altering the membership of the commission this close to the 2017 election, Jubilee contends, will negatively impact IEBC’s ability to prepare for and conduct a credible poll next August. In addition, Jubilee has argued that there is no need for a constitutional amendment to increase the share of revenue allocated to the counties as it is already implementing this popular policy. In the last fiscal year (2015-2016), for example, 37 percent of the audited revenues was allocated to the counties, well above the constitutionally-mandated 15 percent.

Lurking behind Jubilee’s opposition to the Okoa Kenya bill is a singular aversion to a referendum ahead of 2017.

This aversion to a national poll is informed by a sober understanding of its potential political impact. Over the last several months the ruling Jubilee coalition has hemorrhaged a fair amount of political capital due to evidence of large-scale graft in various government ministries. Public anger over corruption forced the president to fire several cabinet ministers in late 2015. However, since no high profile official accused of graft has been convicted a significant section of Kenyans doubt the seriousness of the government in fighting the scourge of corruption. A quarter of Kenyans perceive corruption to be the biggest problem facing the country, with two thirds convinced that none of the officials accused of corruption will ever be convicted.

Besides corruption, the Jubilee coalition is also keenly aware of public dissatisfaction with its handling of security challenges posed by Al-Shabaab, the Somalia-based terror group. Grisly terror attacks on Westgate Mall (September 21, 2013) and the Garissa University College (April 2, 2015) are still fresh on Kenyan’s minds. So are what have become “routine” attacks in the northeast of the country. And just this month, in the early hours of Friday January 15^th, a group of Al-Shabaab militants attacked a Kenya Defense Forces camp in El Adde, Somalia, and killed dozens of soldiers. The government appears to be unable to ward off Al Shabaab attacks on both sides of the border. Calls for a re-think of Kenya’s Somalia policy, including the possibility of full withdrawal of troops, are therefore gaining momentum.

A referendum this year would therefore not just be about amending the constitution. It would also be a report card on the performance of the Jubilee coalition should the government campaign against the proposed amendments. A loss by the ruling coalition in the referendum would trigger a bandwagon effect in favor of the opposition, not unlike what happened in 2005.

Larger Lessons

Thus far we can glean four main important lessons from the “Okoa Kenya” campaign.

First, provisions for popular referendum may have deleterious effects on the institutionalization of politics in emerging democracies. For example, they can be (ab)used to short-circuit the process of legislative development and therefore inhibit the emergence of a culture of intra-elite political compromise. CORD commands slightly over 40 percent of the seats in Kenya’s legislature. Yet the coalition has largely been absent as far as legislative activity is concerned, instead focusing on extra-legislative mechanisms of effecting change. On many occasions controversial bills that touch on critical constitutional issues have passed through parliamentary committees without any input from CORD legislators -- only for the coalition to register extra-legislative objections after the bills are passed. It is reasonable to assume that the presence of an outside option, and not necessarily its minority status in the legislature, has informed this tactic. This focus on extra-institutional means of effecting change limits investments in institutions that are supposed to serve as fora for negotiating important constitutional changes.

Second, extra-legislative means of amending constitutions cannot be divorced from the political process. Constitutional experts should therefore not be under the illusion that popular amendment provisions preserve popular sovereignty. They can be hijacked by political elites as part of intra-elite political machinations. In the Kenyan case, the Okoa Kenya bill is primarily about restructuring the IEBC, a direct concern of politicians angling for power and a matter that could have been handled by legislators without the added cost of a referendum. The bill barely addresses some of the defects in the constitution that have been previously voiced by the public – including, for example, gender balance in key state institutions, the lack of clarity in the functions of various state institutions and commissions, continued opacity in the management of state-owned companies, the need for credible campaign finance reform, and the cost of the two-tier government structure (including the salaries of MPs). Instead, the populist elements in the Okoa Kenya bill will stretch Kenya’s fiscal position even further, not to mention increase resource allocations to counties that have yet to prove that they have the capacity to absorb such high levels of funding.

Third, because of the high probability of being hijacked by populist politicians, constitutional experts ought to consider limiting the reach of popular amendment provisions. As mentioned above, the fiscal implications of the Okoa Kenya bill will be non-trivial. Allocating 45 percent of all revenue to counties, may be popular, but will drain the central government of key resources needed for core public goods like education, defense, and infrastructure (the Okoa Kenya bill does not transfer any new functions to the county governments, which currently are mainly in charge of healthcare and childhood education). It is therefore important to consider the potential implications of popular constitutional amendment provisions for fiscal stability, protection of property rights, and the sanctity of Bills of Rights in the constitutions of emerging democracies.

Fourth, Kenya’s experience is a reminder of the importance of carefully considered participation requirements for constitutional amendments – even when done through popular referenda. As currently designed, at each stage simple majorities are enough to keep the amendment process going. Only one quarter of registered voters in at least half of the counties need to turn out for proposed constitutional amendments to pass, if the majority supports the changes. Such a low popular participation threshold poses a risk to constitutional stability. Constitutions should encapsulate a society’s consensus on governance structures. Amendments through simple majorities conditional on a very low turnout threshold fly in the face of this norm, even if both representative institutions and the wider public are involved in the process.

Conclusion

The Kenyan constitutional amendment process offers an interesting test of the resilience of the country’s post-2010 constitutional order. Outnumbered in the legislature, the opposition CORD Alliance has opted for extra-legislative means of rewriting the rules of the game in an effort to level the playing field (or as some may argue, to tilt the balance in its favor). It is doing so by exploiting the constitutional provision for popular amendment through a referendum. Whether or not it succeeds will depend on the verdict of the country’s 47 counties, a majority of which must pass the Okoa Kenya bill before it can be subjected to a referendum. In order to gain the support of the counties CORD has loaded the Okoa Kenya bill with a raft of populist inducements that, if successful, will stretch Kenya’s fiscal capacity.

Thus far this process offers key lessons on the risks posed by popular constitutional amendment provisions. By almost exclusively focusing on its quest to amend the constitution, CORD has eschewed intra-legislative means of change, thus limiting the potential for constitutional institutionalization of the Kenyan Parliament. At the same time, the loading of the Okoa Kenya bill with populist provisions designed to earn the support of county assemblies raises serious questions about Kenya’s future fiscal stability should the amendments pass. All this has made for incessant political jockeying between CORD and Jubilee, with the August 2017 elections in mind.

The irony, of course, is that a process that was designed to be a channel for a people-led exercise of popular sovereignty has been hijacked by the very political elites it was designed to check against.

Ken Opalo is an Assistant Professor at Georgetown University. His research interests include institutional development in emerging democracies and the political economy of development. Ken is currently working on a book project titled, Institutions and Political Change in Africa: The Case of Legislatures. Ken’s work has been published in the Journal of Democracy and the Journal of Eastern African Studies.