Public Statement on Linda Katiba consultation with the IEBC on BBI constitutional amendment initiative
Linda Katiba convenors met with the IEBC this morning to present a memorandum on public interest concerns regarding the ongoing BBI constitutional amendment initiative. The meeting was chaired by the IEBC Chairman Wafula Chebutaki and attended by Commissioners Boya Molu and Prof. Abdi Yakub Guliye, Ag. CEO Marjan Hussein Marjan and senior commission staff. The Linda Katiba sought the position of the IEBC on three issues as follows:
(i) The constitutionality or lack thereof of use of the popular initiative constitution amendment route by the State. Linda Katiba’s position is that this is unconstitutional because the Constitution affords the State the parliamentary initiative route which is not available to citizens hence the popular initiative route is envisaged exclusively as a citizens/non-state actors mechanism
(ii) Use of public resources and State machinery to canvass signatures for a purported popular initiative
(iii) Coercion of citizens and public servants to sign up as BBI endorsers, of which there is now widespread evidence.
Linda Katiba team impressed upon the IEBC their duty to uphold the Constitution and in particular ensuring that elections are “free from violence, intimidation, improper influence and corruption (Article 81 (e)(i)). Specifically, Linda Katiba sought to know whether IEBC has the power to impugn endorsements obtained coercively or otherwise violates this provision.
The IEBC appraised Linda Katiba that:
(a) That the Commission only seized of a popular initiative upon receipt from the promoters of the proposed amendment bill and the list of at least one million voters endorsing it. As such, the Commission is a “stranger” to the BBI initiative as the promoters are yet to do so.
(b) The Commission has in place administrative guidelines that aim to ensure that referendum promoters comply with the Constitution and electoral law. The Commission acknowledged that these electoral law and tis administrative guidelines may have limitations with regard to some of the emerging issues raised.
(c) The Commissions signature verification exercise affords the public the opportunity to scrutinise the supporters list submitted by the promoters and to lodge complaints if they are included without their consent. The Commission is obliged to expunge the names of voters who report that they are not bona fide supporters from the list.
(d) The Commission has an established electoral Dispute Resolution Mechanism (DRM) that is available to aggrieved parties in electoral matters, that will be available for disputes related to the BBI or any other referendum initiative. The DRM is a quasi-judicial mechanism with the force of law which also affords parties right to appeal its decisions in court.
The parties agreed that in the event the BBI initiative proceeds to referendum, a free, fair, credible exercise held in strict accordance with the Constitution and the law is of utmost importance in its own right as well as to restore public confidence in the IEBC as we approach the 2022 General Elections. The Commission assured Linda Katiba of its commitment to the Constitution and the law, while also highlighting operational challenges caused by chronic underfunding. Linda Katiba expressed satisfaction with the seriousness, openness and collegiality of the consultation and committed to doing our utmost to ensure that the will and sovereignty of the people remains paramount, and duty bearers receive the support they require from the people and the State to execute their mandates. #LindaKatiba
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