Kenyans Approve New Constitution

By JEFFREY GETTLEMAN
Published: August 5, 2010
NAIROBI, Kenya — With a new Constitution overwhelmingly approved by voters, Kenyan politicians are now talking excitedly about their country’s golden future.

No doubt, the new Constitution and the remarkably peaceful way in which the referendum was conducted Wednesday was a much-needed boost of self-confidence for the country.

It showed that Kenya can run a clean election without a violent aftermath, that the losers can graciously accept defeat, that their supporters can move on peacefully and that the police and security forces can be deployed to maintain stability throughout the country. It was a stark contrast to the last election, in 2007, which erupted in ethnically fueled tumult that claimed more than 1,000 lives.

On Thursday, President Obama called the vote “a significant step forward for Kenya’s democracy,” while the nation’s president, Mwai Kibaki, held a boisterous victory rally in Nairobi, telling a crowd of thousands that the new Constitution would be “our shield and defender as we strive to conquer poverty, disease and ignorance.”

“I see a great people ready to build a new and prosperous future,” he said.

But the voting patterns from the referendum also show that even at this crucial turning point, Kenya is still dogged by its old political maxim: follow your leader.

“I’m really relieved that everything has been peaceful, but I have this little feeling in my stomach,” said Maina Kiai, a former human rights official in Kenya who now runs his own civic education organization. The results, he said, prove “that it’s still all about group think and tribal affiliations.”

“Look at the figures from Nyanza,” he said, pointing to the lush province along Lake Victoria where Kenya’s pro-Constitution prime minister, Raila Odinga, is from. “It was completely, overwhelmingly ‘yes.’ ” I wonder how many of these people knew exactly what was in the Constitution. It’s a bit worrying.”

Kenya has a long legacy of ethnic rivalries. It has more than 40 different ethnic groups and the British colonizers shamelessly typecast them: the Maasai were the guards; the Kikuyu the farmhands; the Luo the teachers; the Kamba the bureaucrats; etc.

After independence in 1963, Kenya’s ethnic divides were exacerbated under a winner-take-all political system that vested enormous powers in the presidency — and led to staggering levels of corruption. Kenya’s new Constitution aims to fix this by devolving more power to local governments, giving Kenyans a bill of rights and paving the way for land reform.

Yash Pal Ghai, a constitutional scholar in Nairobi who has been working for years to help get a new Constitution passed, said this election showed that ethnic identities held more sway than religious ones. One of the most divisive issues in the new Constitution was a clause that says abortion was not permitted except in a few circumstances, including if “the life or health of the mother is in danger.”

There are millions of anti-abortion Catholics and evangelicals across Kenya, and Kenyan church leaders implored them to vote down the Constitution, saying it would pave the way for “abortion on demand.”

But as Mr. Ghai observed, Catholics and evangelicals in the Luo and Kikuyu areas mostly ignored that call, while Catholics and evangelicals in the Kalenjin areas voted against the Constitution. The reason: Most Luo and Kikuyu leaders were urging their people to vote “yes,” while the most influential Kalenjin leaders told their people to vote “no.”

“This was largely an ethnic vote, but not absolutely,” Mr. Ghai said of the referendum. “Kenyans are getting more conscious of these things.”

After the violence of 2007, many Kenyans strove to de-emphasize the importance of ethnic identity. Still, Kenyan analysts say that voters are likely to continue voting in blocs, and that to win the presidency in 2012 a candidate must carry at least three of what many Kenyans call the “big five” ethnic groups — the Kikuyu, Luhya, Luo, Kalenjin and Kamba. That is now where the political focus is shifting.

“These guys are already putting their heads together and beginning to play their games,” Mr. Kiai said of the nation’s politicians.

The referendum feeds into this. No one benefits more from the Constitution sailing through, analysts say, than Mr. Odinga, a loquacious, colorful career politician, full of contradictions, including the fact that he comes from a Marxist-leaning family and named his son Fidel Castro but is also one of the richest men in western Kenya.

While other politicians equivocated for months, Mr. Odinga embraced the new Constitution early and passionately, leading rallies dressed head to toe in green (the color of the “yes” camp). In 2007, he ran against Mr. Kibaki and claimed he was cheated out of winning the presidency, which set off the fighting. But now the two are chummy, having worked together on the Constitution. Mr. Kibaki, a Kikuyu, cannot run again for president because of term limits, and if he threw his support behind Mr. Odinga, many analysts believe the presidency would be Mr. Odinga’s to lose.

Another factor: Mr. Odinga’s top two rivals — William Ruto, a Kalenjin and the leader of the “no” campaign, and Uhuru Kenyatta, a Kikuyu and Kenya’s finance minister — are both widely believed to be top suspects in the International Criminal Court’s investigation into the previous election violence. Mr. Ruto is suspected of instigating the first wave of killings, and Mr. Kenyatta of organizing reprisals. The International Criminal Court may issue indictments by year’s end, but supporters of the two men have vowed not to let anyone touch their leaders.

“If the I.C.C. asks us to hand them over, whoa, that’s going to be a critical moment,” said John Githongo, one of Kenya’s most prominent anticorruption activists. “That’s when we’ll stare the beast in the eye.”