NASA rallies more counties, says referendum inevitable

From left, Vihiga Senator George Khaniri , Vihiga Woman Rep. Beatrice Adagala, Tessy Mudavadi ANC party leader Musalia Mudavadi, Sabatia Mp Alfred Agoi pay their last respect to the former employee of United Nations Habitat the late Mary Muhonja Lulu at Sabatia Primary school in Vihiga. (Photo: Benjamin Sakwa/Standard)

Opinion is divided over the constitutionality of National Super Alliance (NASA) plans to set up a national People’s Assembly even as four county assemblies approved a seven-point motion by the Opposition.

It has emerged that Jubilee strategists are keenly monitoring activities of county assemblies in NASA strongholds ever since they started debating and passing the People’s Assembly bills.

NASA principal Musalia Mudavadi is emphatic that the initiative is on course. He says it was informed by the constitutional provisions allowing Kenyans to exercise sovereignty directly. Mudavadi said a planned consultative forum and the national people’s assembly convention will deliberate on the status and future of the country.

“We are setting pace for a national conversation among Kenyans. The initiative is people-based and geared towards a just nation, the rule of law and devolution. This initiative is legal and constitutional,” Mudavadi said in an interview with the Sunday Standard.

He said there was likelihood that some of the resolutions will give rise to referendum questions, particularly those to do with changes on the executive and strengthening of devolution.

However, experts are still divided on the how far the initiative could go. Lawyer Charles Kanjama says whereas NASA is within its powers to form a group to deliberate on issues, its implementation would have to be subjected to a constitutional process.

“The principal philosophy in our system is that you can do anything so long us the law does not prohibit it. Therefore, NASA is within the confines of the law in the initiative,” Kanjama said.

However, a senior government legal officer dismissed the efforts claiming it would achieve little because it lacks a strong constitutional backing.

“You cannot purport to change the law and have a parallel Government as they are trying to do, Kenya has a Constitution and that guides it. Anything else is the normal political joke by some politicians,” he said. Majority leader Adan Duale claimed NASA was engaging in an exercise in futility. “The all exercise has no legal backing. Nobody knows the end game. The only way you can change the Constitution is through either Parliament or a referendum,” said Duale. He said the people could exercise their sovereignity directly under Artcle 1 but that must be done in accordance with the Constitution.

In counties where the Opposition does not have majority in the assemblies, it proposes that their supporters, together with elected leaders, clerics and civil society come up with citizen assemblies. This, Kanjama said, was still within the law philosophically. “People can agree to work as a group, it is legal. Whether the resolutions are binding is another thing.”

Yesterday, Mudavadi said Kenyans should prepare for a referendum. He said the Jubilee administration’s determination to use their numbers in Parliament to push its agenda should be tamed before it gets out of hand.

“As NASA and National Resistance Movement, our agitation for reforms is not informed by greed for power, or personal benefits. We want everybody to have an opportunity where their vote counts and is not just stolen,” Mudavadi said yesterday while attending the requiem mass for Mary Lulu, at Sabatia Primary School in Vihiga County.

Homa Bay Senator Moses Kajwang agrees that the People’s Assembly will lead to a referendum which will ratify the resolutions that will have been deliberated. He said that at the convention, 5,000 people from across the country will be picked to deliberate on the agenda and thematic areas that will be discussed.

State of nation

The senator said the team will have rapporteurs, experts and leaders who will help generate resolutions which would shape the future of the country. “We are simply trying to reboot the country. We will look at the state of the country, the Constitution and what needs to be reformed,” Kajwang said.

His Makueni counterpart Mutula Kilonzo said deliberations from the process, both political and legal, will be binding. “Some of the resolutions will be legal and some will be political. For instance, if the assemblies resolve that they do not recognise the declaration of Uhuru Kenyatta as president-elect, that will not necessarily be legal but political and will significantly dent the legitimacy of his presidency,” Mutula said.

This week Siaya, Busia, Homa Bay and Vihiga passed motions on the formation of the assembly. Fifteen others are expected to follow suit.

Next week, a meeting will be held in Nairobi to set the stage for the preparations of a national conference where governors, MPs, MCAs, Senators, clerics, civil society ledears and representatives from the 47 people’s assemblies will meet to agree on the agenda. The convention will happen within the week the Supreme Court is expected to give a verdict on whether Uhuru was validly elected.

One of the motions considered by the counties reads: “The house.....the presidential elections held on August 8 2017 and October 26 2017 were each and all invalid, null and void; and no Government formed and/or president declared as a consequence thereof, and considering the negligible turnout in the presidential elections held on the latter date, can have constitutional authority or legitimacy to govern.”

A senior Ministry of Interior official who asked not to be named because of the sensitivity of the matter said the Government was keenly studying the clauses in the motion and would counter them at an appropriate time.

- Additional reporting by John Oywa