“I read the Nasa manifesto. The most important thing, they said they would amend the Constitution so that four people can get positions and they say Kenya has a hybrid system. Those changes will cost Kenyans Sh20 billion”
- Aden Duale at a Jubilee Rally in Machakos County on July 4, 2017
The National Assembly Majority Leader, Adan Duale, was speaking in Swahili in Machakos County, and referred to the manifesto launched by the opposition National Super Alliance (Nasa). Jubilee has claimed that the positions proposed by Nasa would require a referendum to implement.
The procedure for amending the constitution is laid out in Chapter Sixteen. Article 255 (1) of the constitution says a referendum is necessary if a constitutional amendment relates to:
(a) the supremacy of the Constitution;
(b) the territory of Kenya;
(c) the sovereignty of the people;
(d) the national values and principles of governance referred to in Article 10 (2) (a) to (d);
(e) the Bill of Rights;
(f) the term of office of the President;
(g) the independence of the Judiciary and the commissions and independent offices to which Chapter Fifteen applies;
(h) the functions of Parliament;
(i) the objects, principles and structure of devolved government; or
(j) the provisions of Chapter Sixteen.
Amending the Constitution to create the positions of Premier Cabinet Secretary and two positions of Deputy Premier Cabinet Secretary, in addition to the existing positions of President and Deputy President would not touch on any of the conditions in Article 255 (1), and so a referendum would be unnecessary.
It is also possible to appoint co-principals of Nasa into the Cabinet without creating the positions in the Constitution, though they would require the approval of the National Assembly, as happened with Najib Balala and Charity Ngilu in 2013.
So it is not necessary to have a referendum in order to create positions for Nasa co-principals, which means Mr Duale’s claim is false.
Nasa ‘s manifesto calls for changes that are much more far-reaching than the creation of three positions. On Page 14 the manifesto states that Nasa will work with the Kenyan people to amend the Constitution:
“…to provide for a hybrid executive system based on the Bomas Draft as a mechanism for enhancing cohesion. Nasa recognises that a directly elected president in a presidential system favours larger communities and encourages exclusivity”.