New Senate Bill seeks to clear path for referendum

Bomet Senator Hillary Sigei /FILE

The Senate has tabled a proposed law that could unlock long-standing constitutional reform proposals that have struggled to advance for lack of a clear procedural framework.

The Referendum Bill, 2026, if passed, would establish a structured path for amendments arising from the bipartisan Nadco talks, review the Constituency Development Fund (CDF), and expand the Senate’s oversight role.

At its core, the Bill seeks to consolidate and clarify procedures for constitutional and other national or county plebiscites, creating a single, comprehensive legal framework to guide any future referendum.

The Bill, sponsored by Bomet Senator Hillary Sigei, lays out a clear constitutional pathway for amendments touching on protected clauses under Article 255 of the Constitution.

It establishes precise timelines, verification procedures, voting thresholds, and dispute resolution mechanisms, aimed at ensuring transparent, credible and efficient conduct of referenda.

The law covers all forms of referenda, whether initiated by Parliament, through a popular initiative, or at the county level.

“The principal object of this Bill is to consolidate the law relating to the conduct of a referendum and provide for a transparent and fair process to obtain a clear expression of the will of the people,” the Bill states.

If approved, it would clear the way for constitutional amendment Bills pending in Parliament, including proposals that have been politically sensitive for years.

Nadco, CDF and Senate

The National Dialogue Committee (Nadco) report proposed a raft of amendments, ranging from the creation of a Prime Minister and deputies to establishing the Senate Fund and anchoring the Constituency Development Fund in the constitution.

Though the report did not provide a clear implementation path, ODM has pushed for a referendum to amend the country’s supreme law, arguing these reforms require direct public approval.

Separately, the Senate has moved to expand its mandate, seeking recognition as a fully empowered Upper House.

Previous attempts to effect constitutional change have repeatedly stalled, in part due to the absence of a standalone law to guide the referendum process.

The most notable attempt—the Building Bridges Initiative—led by former President Uhuru Kenyatta and former ODM leader Raila Odinga, was nullified by the courts, highlighting the legal vacuum that the Referendum Bill seeks to fill.

In the Nadco negotiations, the United Democratic Alliance pushed for the entrenchment of the office of Prime Cabinet Secretary.

Raila’s side also accepted the offer of the office of the Opposition Leader and pushed for a lucrative package to accompany it, including the hiring of two deputies and staff.

In the concession that ensued, Raila’s side pushed for a hybrid or parliamentary system to anchor the office of the Prime Cabinet Secretary in the National Assembly.

The elephant in the room has been whether Parliament can sufficiently instal such drastic changes to the governance structure without a vote by the people.

For some time, according to sources familiar with the events, President William Ruto has been anxious that a vote held mid-term could politically charge the country.

His top lieutenants have equally maintained that a referendum would remain a last resort should the parliamentary route fail to measure up.

Should push come to shove, the Star is reliably informed that the President and his allies have settled on a vote alongside the August 2027 general election.

Prime Cabinet Secretary Musalia Mudavadi recently spoke on the proposal, urging what he called “a seventh ballot paper”.

In the proposed law, Sigei, chairperson of the Senate Justice and Legal Affairs Committee, aims to replace scattered provisions in existing statutes with a detailed legal regime.

Aligning with Articles 255, 256, and 257 of the Constitution, it sets out distinct procedures depending on the route used to amend the constitution.

Under the Bill, any constitutional amendment touching on protected matters under Article 255(1) requires the President to notify the Independent Electoral and Boundaries Commission (IEBC) within 30 days of receiving the Bill from Parliament, with a referendum to be conducted within 90 days.

The law provides that any amendment affecting protected areas of the constitution must be approved through a national referendum, even if Parliament has passed it.

For amendments arising from a popular initiative under Article 257, promoters must submit a draft Bill accompanied by the names, identification details and signatures of at least one million registered voters.

The IEBC has 90 days to verify the signatures, make the documents available for public inspection and publish a verification report.

If the threshold is not met, the commission must notify the promoters and provide directions for compliance.

If the initiative meets constitutional requirements, it proceeds to county assemblies for consideration.

Each county assembly will have three months to approve or reject the draft Bill.

Approval by a majority of county assemblies triggers the introduction of the Bill in Parliament, where each House must facilitate public participation before voting.

If Parliament passes the Bill and it concerns matters under Article 255(1), a referendum becomes mandatory before presidential assent.

However, if Parliament fails to pass the Bill, the proposed amendment must still be submitted to the people in a referendum.

One of the most detailed sections of the Bill concerns how referendum questions are formulated.

Within 21 days of receiving notification, the IEBC must frame the referendum question or options.

Questions must be written in plain English and Kiswahili, using neutral and non-technical language, structured so voters can answer clearly with “Yes” or “No”.

The commission is also mandated to assign symbols to each answer, avoiding symbols previously used by political parties.

The question must be published in the Kenya Gazette, electronic media and newspapers of national circulation, alongside civic education campaigns.

A formal notice of the referendum must be issued at least 45 days before polling day, specifying the nature of the referendum, the question, assigned symbols, campaign timelines and polling hours.

The Bill introduces a structured system for referendum campaigns through the registration of national and constituency-level referendum committees.

Individuals or groups supporting or opposing a referendum question must register with the IEBC, appoint a leader and chief agent, and disclose committee membership details.

Each committee bears its own operational costs, with campaign financing regulated under the Election Campaign Financing Act.

The commission maintains a public register of committee leaders and chief agents.

For constitutional amendments under Articles 255, 256, and 257, the Bill sets a dual threshold: at least 20 per cent of registered voters in each of at least half of the counties must participate, and the amendment must secure a simple majority of votes cast nationally.

For referenda on other matters, including policy questions not involving constitutional change, a simple majority of votes cast suffices.

Results must be declared by the IEBC chairperson within three days of polling and certified to the President, who must assent within 30 days if the referendum passes.

Beyond national constitutional amendments, the Bill provides for county-level referenda on local laws, petitions, planning and investment decisions.

Such referenda may be triggered by county assemblies or county executive committee members, provided at least 25 per cent of registered voters support the petition.

Parliament may also, by a resolution supported by more than half of the members in each House, call for a referendum on any matter within its legislative competence.

Recognising the politically sensitive nature of referenda, the Bill establishes strict timelines for legal challenges.

Any petition contesting the conduct or result must be filed in the High Court within 14 days of the declaration and heard within 30 days by a bench of three judges appointed by the Chief Justice.

Appeals to the Court of Appeal are limited to matters of law, filed within 14 days, with a determination required within 60 days.

Filing a petition automatically stays implementation of the referendum result until the matter is concluded or the appeal timelines lapse.

The High Court is empowered to order scrutiny of votes, declare results void, correct published outcomes, or order a fresh referendum within 60 days.

The Bill applies provisions of the Election Offences Act to referenda and imposes a general penalty of up to Sh1 million or three years’ imprisonment for violations not otherwise penalised.

Public officers, county administrators, registrars and police officers assigned to referendum duties must cooperate fully with the IEBC.

Police officers deployed during referenda are deemed referendum officers and subject to the commission’s direction.

All referendum documents must be retained for six months, subject to inspection rules and court orders.

Importantly, the Bill repeals existing referendum-related provisions in the Elections Act and the County Governments Act, consolidating all such processes under a single statute.

According to its memorandum, the Bill aims to ensure “a transparent and fair process to obtain a clear expression of the will of the people”.

Instant analysis

The Referendum Bill, 2026, could unlock stalled constitutional reforms by creating a clear legal pathway for amendments. It sets timelines, verification rules, and voting thresholds for plebiscites arising from the National Dialogue Committee talks, CDF entrenchment and Senate reforms. By consolidating scattered laws and tightening dispute timelines, the Bill aims to shield future referenda from legal collapse while shifting decisive power back to voters.