Dear Sir/Madam,

Some people have opined that in the event of a narrow win by the proponents of the proposed constitution in the August 4th plebiscite, this referendum decision would be null and void should it fall short of the internationally acceptable threshold for a referendum to be legally binding.

However, even though I am not a lawyer, I think that they have grossly misinterpreted the specific international law that ought to guide referendum exercises the world over when he states that 40% of those who participate in a plebiscite must vote in favour of the proposed constitution for the decision to be legally binding. Such a law would in fact be a move that would be against a referendum`s purpose.

I am of the firm conviction that the international law they was referring to was crafted with constitutional lawyers who had the benefit of foresight to prevent a scenario where some crafty individuals would want to use deliberate abstentions as a means of predetermining a referendum`s outcome.

It is for this reason that the law in question explicitly states that “a referendum’s decision “shall be considered effective and binding if at least 40% of the registered voters participate, whether by voting for or against the proposed legislation. (Italics are mine). This means that in Kenya`s case, the proponents of the proposed constitution only need too marshal 50% plus one of these 40% to vote in favour of the proposed constitution for the referendum decision to be legally binding.

In simple terms this means that out of the 12.6 million registered voters, the country requires at least 5 million voters to participate in the referendum for it to be valid, and of these, at least 2.5 million voters plus one must vote in favour of the proposed constitution for the referendum exercise to have met the internationally acceptable threshold.

Suffice to say that voting has never been an obligatory exercise the world over as it is not in the interest of democratic countries to punish their citizenry for not participating in referendum exercises. I reiterate that if the international law guiding referendums would have put the threshold for voting for a piece of legislation or an entire constitution at 40% of the registered voters this would unfortunately have had the effect of predetermining the referendum exercise through deliberate abstentions by the naysayers. I am afraid that what they allude to is not what the law nor the spirit of the law says.

TOME FRANCIS,
BUMULA.
http://twitter.com/tomefrancis