Procedure of amending the constitution in Kenya via referendum and parliamentary process: In the golden days of Jomo Kenyatta, very few Kenyans thought it was possible to amend the constitution. It was not until 1982 when section 2a of the constitution was amended that Kenyans came to learn about amendment. Constitutional reforms later turned Kenya into a multi-party state in 1992, and a few years later a new constitution was formed. This article will focus on the steps involved in amending the constitution.
In Kenya, the constitution has been mainly amended either through majority rule in the legislature or through a referendum.
Legislative Majority (parliamentary initiative)
In many constitutional amendment procedures, the legislature is required to approve an amendment law with a higher majority than what is required for any other legislation. There are different degrees of majority from a four-fifths majority to an absolute majority of all members. The most common majority formulas are two-thirds (66.7%) and three-fifths (60%) of membership.
Super majorities have advantages and disadvantages. On the upside, they prevent incumbents from unilaterally or easily changing basic rules and make sure that changes are supported by a majority in the political spectrum. On the down side, a high majority enables a very small fraction of the legislature to make it difficult to execute constitutional amendments when they are really needed.
Referendum in Kenya (Popular Initiative)
Since the constitution is the political and legal foundation of any state, its validity should be derived from the people. Therefore, the people are the source of any state’s sovereignty. This is the reason most countries insist on the real involvement of people in constitution making exercises. The best way to involve the public in constitution amendment is through using a referendum after a vote by the legislature. Up to 40% of current constitutions support the use of referendums for constitutional amendments.
An amendment the the Constitution may be proposed by a popular initiative signed by at least one million registered voters.
And when it comes to the referendum, at least twenty per cent of the registered voters in each of at least half of the counties must vote in the referendum.
When there are two political sides competing to amend the constitution for Instance YES and NO side, the winner will be the the amendment that is supported by a simple majority of the citizens voting in the referendum.
There have been concerns that a referendum is not the best way of securing the best interests of minority groups. This is the reason some constitutions require a nationwide majority in a referendum and also that voters in most of the sub units vote in favor of an amendment or that voter turnout be at least 20 percent in most of the subunits.