Holding referendum would be premature, potentially disruptive — Duale

Health Cabinet Secretary Aden Duale has shared his opinion on the call by his Foreign Affairs counterpart and Prime Cabinet Secretary Musalia Mudavadi to hold a referendum alongside the 2027 General Elections.

Duale has said that while such calls are not new, the Constitution clearly provides procedures for resolving national questions, with the courts offering guidance whenever uncertainties arise.

Duale in a statement on Monday said that currently there is no law governing a referendum and that issues identified by Mudavadi can be handled either by parliamentary or judicial intervention.

 “Kenya currently lacks a comprehensive law governing how a referendum should be conducted. Without such a legal framework, moving toward an immediate referendum would be premature and potentially disruptive,” Duale said.

On Christmas Eve, Mudavadi hinted at having the 2027 general election alongside a constitutional referendum on grounds that some issues that need to be resolved can be canvassed into a referendum question.

However, Duale argues that “Not every issue qualifies for a referendum. Article 255 of the Constitution clearly lists what must be subjected to a referendum. Any proposal must first be tested against that constitutional standard, a process that calls for careful legal reflection.”

Mudavadi had identified the issues of gender representation, entrenchment of NGCDF and other funds into the constitution and delimitation of boundaries as key issues that remain unresolved and thus require a plebiscite.

On boundary delimitation, Dual argues that it is acknowledged that IEBC could not act earlier because it was not properly constituted, and the constitutional timeline lapsed, saying this matter now appropriately requires guidance from the Supreme Court and IEBC.

“Proceeding towards a referendum without that guidance risks creating avoidable tension rather than providing solutions. It is also worth noting that proposals to address this are already before Parliament through the NADCO process.”

He added, “Importantly, Article 89(1) fixes the number of constituencies at 290 for elections, meaning there is no immediate constitutional risk regarding the 2027 General Election.”

During an interview, Mudavadi argued that it was about time the country made a decision on the fate of funds such as NGCDF.

“I think this is the time. We have other issues like how to deal with the Constituency Development Fund. This matter has been a subject of back and forth between Parliament and the Courts, and we need to put it to rest and anchor it on our constitutional framework,” Mudavadi said.

On issues such as entrenching development funds and implementing the two-thirds gender rule, Duale said Parliament is already engaging these matters through ongoing legislative processes that include public participation.

“Calling for a referendum on matters currently under parliamentary consideration may inadvertently undermine these lawful processes and create unnecessary uncertainty,” he added.

Duale said that although Mudavadi has thoughtfully drawn attention to a possible constitutional challenge that the nation could face by 2027 and has suggested that the time may be approaching for a referendum, it may not be practical to hold a referendum.

“In conclusion, there is no looming constitutional storm. The Constitution remains firm, the legal pathway is clear, and the national environment remains stable, guided by the rule of law and the strength of our institutions,” Duale concluded.

Duale has become the first senior government official to give their opinion on the matter, just days after key opposition figures dismissed calls for a referendum.  

Presidential hopeful and former Chief Justice David Maraga in rejecting the referendum call, said there was no constitutional crisis, saying any such claim is manufactured by politicians who 'fear accountability'.

“The recent remarks by high-ranking government officials, including Mudavadi, suggesting a need to alter or amend our Constitution is both political theatre and disregard for a Constitution that holds the unfulfilled hopes of the people,” Maraga said in a statement.

Suba South MP Caroli Omondi who chairs the National Assembly Constitution Implementations Oversight Commission (CIOC), also rejected the call.

“The call for a referendum is to create unnecessary anxiety about the extension of a presidential term,” Omondi saying citing Mudavadi’s remarks that elections risk being nullified even before they are held.