Is a referendum the new battle front between Ruto and Raila?

"Increasing taxes will not address the current cost of living. The Kenya kwanza government came to power without any plan on how to lead and if they stayed even for 100 years there is no change that they are going to bring," said Raila.

The remarks came two days after he endorsed the NADCO report and explicitly called for a referendum to implement key proposals in the report such as the establishment of the office of the official opposition leader and entrenchment of the Prime Cabinet Secretary's office into the Constitution.

"...Besides it is a constitutional requirement that such significant restructuring of government must go through a referendum to avoid the mischief that may be played by some people going to court," he stated.

A plebiscite before the next general election would however deal President Ruto a huge blow even as he faces the dilemma of going that route or staying his course. Should he heed to the calls by the opposition, Ruto risks losing his political grip owing to his mounting unpopularity, including among those who voted for him last year, emanating from lacking solutions to the high cost of living, the country's dwindling economic fortunes, a weakening currency and unemployment more than one year into office.

The President's allies and lieutenants are also alive to the fact that a referendum this early in his presidency could lead to a vote of no confidence in his administration- a development that could easily propel his political nemesis, Raila, into power come the next elections.

Members of Parliament from the Kenya Kwanza Alliance fold are now hurtling to shut out talk of a referendum, accusing Raila and his Azimio la Umoja Coalition of exploiting the NADCO report for political leverage.

They estimate a plebiscite would cost approximately Sh6 billion, an expense that would not only disrupt the regimes development agenda but also the economic recovery blueprint.

"I have never supported the dialogue right from the word go since it does not address common Kenyan issues rather top class political comfort....this (referendum) is a route that the President must not follow. The president must focus on economic recovery," said Mukurweini MP John Kaguchia.

Sabatia MP Clement Sloya pointed out the insincerity in the calls for a referendum by the opposition, questioning how it continues to agitate for such an expensive undertaking while at the same time demanding the cost of living needs to be addressed.

Policy shifts

"If a plebiscite is to happen, it should be undertaken at the right time but not now when the opposition seeks to disrupt the President's programmes and add another tax burden on the people of Kenya. Let us focus on growing the economy and creating opportunities, "observed Sloya.

Apart from the creation of the office of leader of official opposition and two deputies and entrenchment of the Prime Cabinet Secretary's office, report by NADCO, which was co-chaired by National Assembly Majority leader Kimani Ichung'wa and Wiper party leader Kalonzo Musyoka, proposes a raft of constitutional amendments and policy shifts to deal with the perennial post-election crises such as the extension of presidential election petition timelines within which the Supreme Court considers and rules on contested outcomes from 14 to 21 days.

It has also called for an increase in the term of the Senate from the current five to seven years, the formation of an independent commission to take over the roles of the Office of the Registrar of Political Parties and the merger of three commissions. They are the National Cohesion and Integration Commission (NCIC), the National Gender and Equality Commission (NGEC) and the Kenya National Commission on Human Rights (KNCHR).

But with a plebiscite in sight, pundits argue that a series of hurdles in the way could throw a spanner in the works and delay the change in the governance structure or even push it to after or during the 2027 General Election.

The first hurdle is the absence of a properly constituted Independent Electoral Boundaries Commission (IEBC) whose core mandate is to oversee and manage the electoral process and carrying out a boundaries' delimitation exercise in line with the Constitution. The electoral agency is currently a shell of its former self following the exit of former chairman Wafula Chebukati and commissioners Boya Molu and Abdi Guliye on January 17 after their unrenewable six-year terms lapsed.

The three were appointed in January 2017 alongside four others, who later resigned after the disputed 2017 elections. Former Vice-chairperson Juliana Cherera, and commissioners Francis Mathenge Wanderi, and Justus Nyang'aya resigned in December 2022 after President Ruto formed a tribunal to consider a petition seeking their removal from office over their conduct during the tallying and announcement of presidential results last August. Commissioner Irene Masit's appointment was later terminated by Ruto after a tribunal found her guilty of gross misconduct.

In February, Ruto named an IEBC selection panel to pick nominees for appointments as the chairperson and members of IEBC.

However, Azimio protested leading to the stoppage of its work to allow for dialogue.

In its report, NADOC recommends the establishment of an expanded IEBC selection panel, composed of nine members up from seven.

Political Analyst Javas Bigambo was however categorical that the referendum is not a national priority and if it must be conducted, it should run concurrently with the 2027 General Election.

Resource intensive

"Even once the IEBC is reconstituted, it will have its hands full dealing with more immediate and resource intensive matters such as the boundaries delimitation and comprehensive electoral reforms ahead of the 2027 general elections. Given the economic situation, we cannot go for the referendum then the boundaries delimitation and later the General Election," said Bigambo.

The second hurdle, he pointed out, is the lack of legislation on how to conduct a referendum which clearly outlines how to deal with challenges that may arise upon conclusion such as a tie and other disputes.

"Recent remarks by the Azimio leadership easily demonstrate that they are oblivious to gaps in policy and law and that they are not interested in a referendum but derailing Ruto's programmes to try and expose his incompetence in the next general polls," added Bigambo.

Another hurdle, observe pundits, is the cost of the referendum itself given that the country is still reeling from the aftershocks of the Covid-19 pandemic that gutted major economic sectors and worsened the debt burden.

That, coupled with a rising high cost of living and mounting taxes have left low-income earners struggling.

Compounding Kenyans' woes is the fact that the NADCO report failed to clearly outline measures to tackle the high cost of living with the same being referred to the principals, President Ruto and Raila.

Lawyer Morara Omoke observes that should the political class arrive at a consensus to go the referendum route, they need to jump the hurdle of ensuring that there are limited proposals and that they must ensure the initiative is people driven.

Omoke, who was instrumental in the sinking of the Building Bridges Initiative - which had similar proposals as the NADCO report - noted that the pursuers of the plebiscite need to ensure that their proposals are separated into two so that what requires parliamentary approval is done and what requires a popular initiative follows that route as opposed to presenting an omnibus proposal.

"The challenge is that the political class needs to find a way of making the process people driven for it to pass the constitutional test. They have to make sure that the proposal are limited and if need be they could have multiple choice questions," said Omoke.

All eyes are now on the two principals to seen how they proceed with implementation of the NADCO report.