Senate Justice, Legal Affairs and Human Rights Committee chairman Hillary Sigei /HANDOUTThe country could soon have its first comprehensive law governing referenda if the Senate adopts a proposed legal framework designed to prevent constitutional disputes.
The Senate Justice, Legal Affairs and Human Rights Committee has recommended the passage of the Referendum Bill, 2026, with amendments.
"Having considered the Referendum Bill, 2026, and the submissions received thereon, the committee recommends that the Senate passes the Bill with amendments as proposed by the committee," the report says.
The panel, chaired by Bomet Senator Hilary Sigei, said the legislation fills a major legal gap repeatedly highlighted by the courts during the failed Building Bridges Initiative (BBI) litigation.
"The Bill provides the processes for initiating, organising, conducting and challenging referenda in court. It also sets out the processes for implementation after results are declared," the committee report states.
The proposed law will apply to constitutional amendment referenda under Articles 255, 256 and 257 of the constitution, county referenda and national referenda on other public issues provided for under the legislation.
The committee said the law had become necessary following the BBI judgments by the High Court, Court of Appeal and Supreme Court, which found the country lacked a comprehensive legal framework to guide referendum processes.
"The High Court, Court of Appeal and Supreme Court all converged on the view that Kenya lacks a comprehensive, coherent referendum law capable of guiding a constitutionally compliant process," the report says.
Currently, at least three constitutional amendment Bills are pending in Parliament.
They include one seeking to give the Senate enhanced legislative and institutional powers and another seeking to bar governors who leave office from running for MCA or parliamentary seats within five years.
One of the major reforms proposed concerns constitutional amendments through a popular initiative.
Promoters will be required to submit a draft Bill supported by at least one million registered voters to the Independent Electoral and Boundaries Commission (IEBC).
The commission will have 90 days to verify the signatures, publish the verification report and determine whether the constitutional threshold has been met before forwarding the Bill to county assemblies.
Initially, the Bill had proposed that the IEBC verify signatures within 18 months, but the committee reduced the period after the commission proposed changes.
IEBC warned that "the 18-month period for parliamentary consideration is too long and may cause undue delay for citizens who have already met the threshold for a popular initiative."
The committee limited the IEBC's role to verification and procedural compliance instead of determining whether proposed constitutional amendments are legally valid.
According to the committee, "substantive constitutional questions" should instead be determined by the courts.
County assemblies will have three months to either approve or reject a popular initiative after receiving it from the electoral commission.
The committee rejected a proposal by the Council of Governors that county assemblies failing to act within the prescribed period should automatically be deemed to have approved a Bill.
Instead, senators resolved that a county assembly that remains silent within three months will be treated as having rejected the proposal.
Parliament will also face tighter timelines.
The legislation introduces detailed rules governing referendum questions.
Under the Bill, the IEBC must prepare questions in plain, simple and neutral language in both English and Kiswahili.
Questions must avoid bias and allow voters to answer simply by marking "Yes" or "No".
The committee further accepted proposals making consultation mandatory before referendum questions are finalised and requiring enhanced voter education programmes ahead of the vote.
Campaign financing also features prominently in the proposed law.
The committee adopted amendments proposed by Transparency International Kenya prohibiting public officers, state officers and government institutions from using public resources to campaign for or against referendum questions.
TI-Kenya proposed "an express prohibition on public officers, state officers, and public entities from using public resources, public funds, public office, government infrastructure, or official functions to support or oppose any referendum question or option."
The amendments also require referendum committees to maintain financial records, disclose donations and expenditure, and subject their accounts to independent audits.
The Bill retains the constitutional threshold for approving constitutional amendments through a referendum.
For such amendments to pass, at least 20 per cent of registered voters in each of at least half of the 47 counties must participate, while the proposal must secure a simple majority of all votes cast nationally.
For county referenda and other public questions, the outcome will be determined by a simple majority of votes cast.
The committee rejected proposals to abolish the county turnout threshold, arguing that any changes would require a constitutional amendment rather than ordinary legislation.
To minimise post-referendum disputes, the Bill establishes a dedicated legal framework for referendum petitions.
Challenges must be filed in the High Court within 14 days after the declaration of results and determined within 30 days.
National referendum petitions will be heard by a three-judge bench appointed by the Chief Justice, while county referendum disputes may be handled by a single judge.
The committee also retained provisions providing that filing a referendum petition automatically suspends implementation of the results until the case and all appeals have been concluded.
"Filing a petition automatically suspends the effect of the declared referendum results until the petition is heard and determined and the period for appeal has lapsed," the Bill states.
The IEBC had proposed removing the automatic stay, arguing that it differs from election petition procedures, but the committee declined the recommendation.
Appeals will proceed to the Court of Appeal on matters of law before a further appeal to the Supreme Court where necessary.
The proposed law further requires the IEBC to retain referendum records until all litigation is concluded and to publish a post-referendum evaluation report to enhance transparency and institutional learning.
It also requires draft regulations governing referenda to undergo public participation before approval by Parliament.
The committee rejected several proposals from stakeholders.
They include eliminating county assemblies from the popular initiative process and allowing Parliament to present alternative referendum proposals alongside citizens' initiatives.
Others are prohibiting state officers from supporting popular initiatives and abolishing safeguards against omnibus constitutional amendments.
