Law Expert Flags Legal Risks in Mudavadi’s Proposed Referendum

Advocate and human rights activist Ndegwa Njiru has raised concerns over Prime Cabinet Secretary Musalia Mudavadi’s push for a referendum, describing it as legally risky, politically questionable, and poorly timed. 

In a statement on social media on Tuesday, December 30, 2025, Njiru warned that attempting constitutional amendments amid an election cycle could destabilize the country and create confusion among voters.

According to Njiru, Kenya’s Constitution was deliberately designed to prevent mid-term legal disruptions. 

While Article 255 permits amendments, he emphasized that major political and governance questions should be resolved through general elections, rather than through changes in the middle of an electoral period. 

“Amending the Constitution in a politically charged period undermines stability, predictability, and public confidence,” Njiru explained.

Njiru further cautioned that conducting a referendum alongside general election preparations could dilute informed voter consent. 

“A lawful referendum is not just about legality. It is about process. Constitutional changes require sustained civic education, public participation, and national consensus. Combining referendum education with voter education for elections risks confusion and undermines the principle that sovereignty must be exercised knowingly and deliberately,” he said.

Highlighting potential institutional challenges, Njiru noted that any amendments affecting executive powers or electoral frameworks before an election could place institutions such as the Independent Electoral and Boundaries Commission (IEBC), political parties, and courts in a grey zone. 

This uncertainty, he warned, could impact election timelines, administrative clarity, and the integrity of the electoral process. 

“Courts have repeatedly cautioned against reforms that destabilize the electoral environment close to elections,” Njiru stated.

In addition to legal and institutional concerns, Njiru raised financial implications. He noted that organizing a referendum would cost billions of shillings, a significant expenditure at a time when Kenyans face rising taxes and unmet needs. 

He argued that public money should serve pressing national priorities rather than political convenience.

“From a fiscal standpoint, this referendum is questionable. At a time when citizens are burdened with rising taxes, shrinking incomes, and public service gaps, spending billions on a political project does not meet the constitutional test of responsible finance under Article 201,” Njiru said.

Njiru concluded by asserting that the referendum appeared politically motivated rather than necessary. He urged Kenyans to question its legitimacy and weigh whether it serves public interest or elite self-interest. 

“In law and in logic, this referendum is not necessary. It is a political initiative presented as constitutional reform. When elite interests, massive public expenditure, and legal technicalities intersect, citizens must ask not whether it is legal, but whether it is legitimate,” he noted.

Prime CS Mudavadi has championed the referendum as a platform for reforming governance structures and enhancing democratic participation.