“We are staring at a massive legal crisis where the 2027 election could be nullified before it even begins. Our 2010 constitution demands boundaries review every 8 to 12 years. Our deadline was March 6, 2024 [see Article 89(2)]. We have passed it. We are now in a period of constitutional non-compliance.”

Mudavadi’s intention is convince Kenyans that we can’t have a valid 2027 election without some amendment to the Constitution.

Does he then add his main objective: a bonanza for the political class? More jobs, preservation of constituencies that might otherwise be merged with others, more money to steal or bribe with, or use to enhance their image.

The scare story

In fact, I firmly believe that courts would decide that the inability of the IEBC to review boundaries on time, whatever the cause, does not mean that we cannot have the elections on time. We shall find out soon whether I am right, when courts decide.

Regular elections are a key element in our political system. The only situation in which the Constitution imagines elections being delayed is if we are at war (Article 102(2)). (Some major disaster might as a matter of necessity delay elections.)

Secondly, Mudavadi’s argument would make it too easy for some people to delay the boundary reviews deliberately to postpone elections.

Specifically, the Constitution says clearly that, even if a boundary review is completed after the deadline, the review will not apply to that imminent election – not that the election must be delayed (Article 89(4)).

Do boundaries matter? Realistically, boundary reviews are a bit less important in a presidential system than a parliamentary one. Constituency boundaries do not affect the election of our head of government – unlike, say, in the UK. And the enthusiasm of Kenyan MPs from supposedly opposition parties to cosy up to the President means that the significance of their voter support is much reduced.

Boundaries may affect the make-up of Parliament. But the Constitution does allow quite a wide departure from equality of votes. And actually causes it by creating one woman representative for each county whatever its size. The tendency of many urban dwellers to register as voters in their rural areas also undermines the equality of vote based on populations in constituencies.

Would a referendum help?

Presumably Mudavadi’s idea is to adopt the Nadco report approach: allowing Parliament to extend the Article 879 deadline. By the time of the election/referendum, Parliament would not have had that power. So – if Mudavadi’s scare tactic is right – the 2027 election would still be invalid.

And a referendum on election day would not affect the Constitution until the President signed the Bill after the IEBC declared the referendum result (and declared who was elected President, of course).

Incidentally, should it be Parliament that is given any power to extend the time for boundary review? Debate over one person, one vote, one shilling revealed how self- centred MPs are on this – the CDF being a central factor. But if no review meant no election, might Parliament be tempted to refuse the extension – giving themselves more time at the trough? The decision should be for the courts, which have no vested interest in the decision.

Referendum with election?

There is no such thing in the Constitution as “amendment by referendum”. Amendment proposals cannot be taken straight to the people in a referendum.

A referendum may happen in certain circumstances only. The first is if Parliament passes amendment/s doing one or more of things listed in Article 255. The best known is extending the term of the President.  Clarifying exactly which proposals would need a referendum would probably require someone to go to court.

The second situation is if a popular initiative to amend the Constitution is approved by a majority of county assemblies, but is rejected in Parliament.  A referendum could override that rejection. Both houses approved the BBI popular initiative proposals in 2021. It’s likely that this Parliament would pass anything the President wanted by way of constitutional amendment. What is the point in using the “popular initiative” when you could just take the proposals to Parliament?

Various people have already mentioned the Supreme Court decision which put an end to the whole BBI process on the basis that the President cannot sponsor a popular initiative. It seems likely judges would say the President cannot hide behind his Cabinet Secretaries to do so either.

If Parliament approved a popular initiative amendment Bill there would still be a referendum on any issue when Article 255 required it.

It is the task of the President to ask the IEBC to conduct a referendum if it is needed under Article 255. Of course if the President failed to do so, or his list of referendum issues seemed doubtful, there would be court cases. It might be hard to ensure that a referendum if finally called would coincide with the elections fixed for August 10^th 2027 – applying the rigid timetable under Article 256, complicated by the inevitable court cases.

The real agenda

Additionally, Mudavadi seems to think one constitutional amendment should increase the number of constituencies from 290. Are MPs so useful that we need even more of them?

Otherwise his real agenda seems to be the Nadco report, though he did not mention the Nadco idea of extending Senate’s term to seven years (rejected by a joint parliamentary committee).

However, he is suggesting that the two-thirds gender rule would be solved in his referendum. The only approach accepted generally is to have top-up women members (as in counties) – meaning yet more MPs. If the top-up approach had been adopted before 2022 we would now have 56 “list women” in Parliament making a total of 405 members altogether.  Alternatively Nadco proposed 94 county women members, making a total of 396 MPs.

What else is in Nadco? It proposed what would be probably the weakest “prime ministerial” position in the world. It is fundamentally the position held by Mr Mudavadi (much as he denies it): an opportunity for a President to give special recognition to a politician who has brought substantial benefits in terms of votes.

Then there is the Leader of the Opposition (LOO).  According to Nadco, this would be either the best loser in the presidential election or a person nominated – presumably by the main, non-government party/coalition in the National Assembly.

The Nadco Report and Bill are unclear about whether the LOO would be in Parliament after appointment, but Mudavadi assumes Yes. But there is already the Leader of the Minority in each house – essentially leaders of the parliamentary opposition. What would be the role of this new LOO in Parliament? Alternatively, it’s not impossible that the “best loser’s” party or coalition might be the majority in the National Assembly – which would elect its Majority Leader. Again how would the LOO fit in?

The LOO is a sinecure – a salary without any real job. To make matters worse – there would also (under the Nadco Bill) be two Deputy LOOs!

The Nadco report says Parliament should pass law on the LOO’s functions, including fostering cooperation between government and opposition. Did Nadco envisage a sort of Raila Odinga role in perpetuity (with a salary) – losing the presidential election but shaking hands with the winner?

Kenya has not shaken off the legacy of the one party state. The role of opposition is not well understood. Mudavadi specifically mentioned constitutionalising the NGCDF (and ward development funds and the strange Senate Oversight Fund) – to “protect them from the courts”.  The courts have got it right – the NGCDF, and ward funds (and the women representatives’ fund, though a court held otherwise) are inconsistent with one important constitutional role of legislators: scrutinising how public money is spent.

This article was fist published by The Star Newspaper https://www.the-star.co.ke/siasa/2026-01-11-ghai-real-agenda-in-mudavadis-calls-for-referendum

Image: Newspaper Screenshot