IF NO WINS...

Forty-four days to the referendum on the Proposed Constitution both camps are in the trenches and anxiety is running high. In style and language, the main actors are letting one thing out: the stakes are so high, not only for themselves, but the country.

Because of the number of high-profile personalities in the ‘Yes’ team and the fact that they are literally the ones currently holding the country’s steering wheel, questions are already rising whether failure won’t amount to an unprecedented crisis of confidence in the Government.

This is because of the sheer velocity that goes with the offices of the ‘Yes’ team’s top marksmen, composed of a President, Prime Minister, two Deputy Prime Ministers, a former VP, almost the entire Cabinet, as well as a good number of Assistant Ministers.

On Sunday, the PM seems to have had this in mind when he told a church gathering in Kiambu that President Kibaki and himself were prepared to pay whatever political price that would come with their decision to support the Draft.

"I am willing together with President Kibaki to be thrown into the National Park in the midst of lions if that is what it will take to prove my conviction that the Proposed Constitution is good," said the PM.

He spoke a day after defiant suspended Assistant minister Wilfred Machage, who is in ‘No’ and faces hate-speech criminal charges in court, declared the two should be prepared to step aside if they lose at the referendum.

Unlike in the 2005 referendum when the political muscle of the Banana team, lead by President Kibaki, and the Orange side led by the PM, gave the two teams some sense of shared weight scale. But the ‘Yes-No’ contest seems on the surface to bear the ring of a David versus Goliath contest.

The leader of ‘No’ team, Higher Education Minister William Ruto says there are many ‘Yes’ members, but are scared of coming out, and that their impact will only be felt at the referendum ballot box

His team, whose symbol is a red card, for now counts on the vocal supporters it has, mainly in the Rift Valley, retired President Moi who says his ‘No’ bears a different face, as well as Cabinet Ministers Naomi Shaban and Samuel Poghisio.

Sacking threats

This side also shares the same platform as several Churches, which see themselves as both populous and influential, and have what it takes to tilt the scales in favour of ‘No’.

The Reds are also accusing the Government side of using the State resources to campaign and intimidate them, including deploying scary tactics such as court cases against their members as well as sacking threats.

It is against this background that the question of what it would it mean for them if Kenyans reject the draft is asked.

The prospect of a defeat may have been the least of their worries a few months ago, but of late Kibaki, Raila and most of the big names in Government have not only chosen to disregard their differences and campaign together, but their intermittent pleas seem to suggest the confidence they displayed a few months ago could have either suffered a beating and complacence has to be fought tooth and nail.

This is because victory could be decided on a simple majority — 50 per cent-plus one — and every vote lost at the referendum counts because the international acceptability threshold of referendums stands at 40 per cent of registered voters.

If voter apathy is not fought, the product of the referendum, assuming ‘No’ wins, may have the force of law, but still sound alien to majority of the citizens.

The latest sign the ‘Greens’ are exploring all options came last week when Vice President Kalonzo Musyoka revealed there were fresh attempts by Government to reopen talks with Christian clergy opposed to the draft.

Comments made by pro-draft officials including the PM when some MPs from the ‘No’ side were hauled to court last week on incitement charges, however, seems to suggest they have nothing to lose if the ‘Reds’ are pushed further down the edge.

Kibaki, Raila and Kalonzo spent the weekend in joint campaigns in Machakos and Nakuru. On their side is Prof George Saitoti, a former Vice President and the two DPMs — Musalia Mudavadi and Uhuru Kenyatta. Then there is the Cabinet, whose members bound themselves via a collective decision to support ‘Yes’.

"President Kibaki and I are ready to pay whatever price to defend the Proposed Constitution and all the clauses including those singled out as contentious by some leaders," said the PM.

Up in smoke

He said their support for the draft was out of genuine wish to have Kenyans get a good constitution.

But senior Pastor Elijah Wanje told Raila to his face his convictions about the new law were just that, his own.

Sources believe the frustrations in ‘Yes’ stem from three areas:

— If ‘No’ side can win majority votes to reject the draft their own reputations could go up in smoke, which is more negative for those eyeing the Presidency in 2012.

— Secondly, for a team as large as that of the Greens, the expected results — and this was what some of the leaders said at the beginning, would have been at least a three-quarter win at the referendum. Being denied this outright win could be reason for their opponents to celebrate.

— If ‘Yes’ wins on the basis of numerical strength, but only of the votes cast, the majority of the voters having stayed out because of either apathy or perception the outcome is already ‘decided’ in favour of ‘Greens’.

At the back of the mind is the advice by Justice Minister Mutula Kilonzo that it is an international practice that for a law to pass at a referendum it must be voted for by at least 40 per cent of registered voters. This would mean that at least five million Kenyans (40 per cent of 12.6 million registered voters) have to vote ‘Yes’ for the draft.

Raising five million voters could be a big challenge for Kibaki and Raila.

In the 2007 General Election only nine million Kenyans voted and yet the campaign mood in the country was more in favour of change.

On Sunday, a lobby group argued defeat for the ‘Greens’ team would mean a vote of no confidence in the Government.

National Civil Society Congress (NCSC) claimed if the ‘No’ camp wins it could lead to dissolution of government and an early general election.

According to NCSC president Maurice Odhiambo, failure could lead to collapse of the post-2007 reform consensus.

Former Kabete MP Paul Muite argued that even though it does not have any legal binding, it would be a vote of no confidence.

"In developed countries it would lead to resignation of the government but the situation in this country is different and I doubt if such a thing can happen even if it is defeated," said Muite.

Kigumo MP Jamleck Kamau said the possibility of the new law being rejected had moved some MPs to make a fresh bid to amend the review law to make amendments to the draft. "The best option is to get a common ground to ensure no side loses," said Kamau.

Kamau explained it was the fear of ‘No’ winning that made him and other MPs to initiate attempts to amend the review Act this late in the day.