The 'Un-East African' Constitution And Why It Took So Long

Charles Onyango-Obbo

Nairobi — Large margins are rare in Kenya's political contests, so it says a lot that 70 per cent of the voters endorsed the new constitution in last week's August 4 referendum.

The "No" side, led by a motley crew of churchmen, Higher Education Minister William Ruto, and former president Daniel arap Moi, eked out 30 per cent.

The referendum was a bold move for President Mwai Kibaki who, with Prime Minister Raila Odinga, led the Yes campaign.

Kibaki first pushed a referendum on a new constitution in 2005 and lost.

The No side in 2005 was led by his bosom ally in the latest referendum, PM Raila who, like Ruto on this round, was then also a minister who went rogue.

It says something about the mettle of the deceptively laidback Kibaki that he would seek a referendum within five years of his last defeat.

There are few leaders in the world with that level of political masochism.

By choosing to make a constitution via a referendum, Kenya is unlike its old partners in the East African Community, Tanzania and Uganda.

That method is more in the tradition of the new EAC members Rwanda and Burundi.

Rwanda has had two constitutional referendums, in 1978 and 2003.

Burundi has had the most -- in 1981, 1992 and more recently in 2005.

That said, it would be a mistake to conclude that Kenya shares constitution-making similarities with Burundi and Rwanda.

On the contrary, Kenya's new constitution offers an interesting insight into how its political culture and dynamics are different from the rest of the EAC.

Tanzania amended its constitution in 1992 to make its politics more modern, and to give the ruling Chama cha Mapinduzi (CCM -- or Party of Revolution) a second lease of life as a reformist party.

That second life at the top seems set to be a very long one.

The new constitutions in Uganda in 1995 and Rwanda in 2003 were designed to consolidate the revolutionary order brought about by armed wars of liberation.

In Uganda, President Yoweri Museveni came to power in January 1986 after a five-year guerrilla war.

In Rwanda, the Rwanda Patriotic Front took power in July 1994 after a four-year insurgency and genocide three months earlier in which nearly one million people were killed.

In Rwanda and Uganda, the new constitutions were thus also a symbol, a borderline between the old and new orders and tools of legitimacy the party in power needed because it had come to power through the gun, not an election.

In Kenya, the political symbolism has been less marked, as the Grand Coalition government came to power after an election, although the election outcome was disputed and sparked a month-long bout of violence.

So, because the Kenya government was not under pressure to legitimise a revolution or to renew itself as in the case of CCM in 1992, the new constitution is mostly a practical tool to enable a new way of doing business.

But the biggest difference from the rest, though not dramatic, is a deeply philosophical one.

In Uganda, 1995 was a consolidation of facts that were already a reality of political practice.

Liberation movements need all hands they can get on deck to win, and for that reason they tend to give a higher role to women, than in more settled politics as in Kenya.

It is as much an act of revolutionary conviction, as of desperation and opportunism.

In the end, though, they get formally ennobled in most constitutions made by former guerrilla movements.

The broadening of women's representation in politics in Rwanda and Uganda, therefore, came before, not after, their constitutions.

In Kenya, the expansion of political space and full citizenship rights for women has finally come with the new constitution.

Then, the Rwanda constitution is rather unusual -- more like Lebanon's -- because it sets out in detail how the political spoils are to be divided.

For example, the party that wins elections, however large its majority, cannot have more than 50 per cent of Cabinet seats.

The Speaker of Parliament (currently held by Rwanda's Social Democratic Party, PSD), and the President of the Senate (held by the Liberal Party) cannot come from the ruling party.

The result is that today, the ruling RPF has Paul Kagame as president, and even the Deputy Speaker is a member of the PSD.

This structure, however, was basically transferred from the Arusha Accords signed between the RPF when it was in the bush, and Juvenal Habyarimana's government in Kigali.

The same is largely true of Burundi's constitution.

Again, when the RPF took power in July 1994, possibly more than half its members who had lived outside the country as refugees and exiles had become citizens of other countries.

The same thing was true with Museveni's NRM. Dual citizenship therefore was important to regularise the status of many citizens of those countries already living unofficially in Rwanda and Uganda.

Kenya, though, is not a country of exiles and refugees, so the dual citizenship provisions are not designed to solve a political problem, but a social one caused by the "diasporisation" of a generation of middle-class children.

Finally, unlike CCM, the NRM in Uganda or RPF in Rwanda, Kenya no longer has a single dominant party.

The National Rainbow Coalition that ended 38 years of Kanu rule in December 2002, was an amalgam of over 10 parties.

When Narc fell apart in 2005, Kenya became burdened by a hobbled government.

In the 2007 election, Raila's Orange Democratic Party became the largest party in parliament.

But because of shifting loyalties and the fact that its majority was razor-thin, if just three ODM MPs stay in bed because of a headache, it will lose a vote in parliament.

CCM has no such headaches. Even if nearly all the party's MPs stayed away from a parliamentary vote, it would still win it.

The fact that there is no dominant party in Kenya explains why its constitution has gone further than any other in Africa -- except perhaps South Africa's -- in expanding civil and democratic rights, and in offering East Africa's most ambitious devolved government. The counties are soft federal units in everything but name.

Kenya's constitution is like a Christmas tree festooned with all manner of presents.

That was one of the devices used to win a majority in favour of it. If there is a constitution in East Africa that is a bribe to the voters, Kenya's is it.

In addition, because of the country's fractured political party system, many of the political players and interest groups booked their needs into the constitution because they were unsure they would ever have the clout to do so at a later stage.

This partly also informed the strident opposition by the evangelical and Catholic church leaderships to what they saw as underhand legalisation of abortion.

Though the politicians were urging them to support the constitution which is "90 per cent okay" and to wait to get the "10 per cent later" via amendments, in all probability they knew that that would be a very difficult thing to do once the new law passed.

Kenya has been working at getting a new constitution for more than 20 years, the longest such struggle in the world.

Only Burma, which took 17 years, comes close. If you spend 20 years rewriting and editing a document, you are likely to end up with a fairly decent final product.

And if, like the Freedom Corner women in Uhuru Park at the height of democracy agitation in Kenya, your main weapon of protest is to strip and frighten off superstitious police who think an old woman's nakedness brings bad luck, then your struggles will take longer to come to fruition, than those of your Rwandan and Ugandan sisters who choose to take up the AK-47 instead.

In 2005, a battery of changes stripped away quite a few of the progressive elements in the 1995 Uganda constitution, including the two-term presidential limit.

Those types of reversal tend to happen to constitutions that are the result of quick victories.

If Kenya's survives 10 years intact, then at least East Africa will learn that a good constitution needs to have the gestation period of an elephant.