Kenyans at crossroads with constitution

Monday, Aug. 30, 2010

By EDWARD KARIITHI and HANY BESADA
Special to The Japan Times
WATERLOO, Ontario — Earlier this month, Kenyans went to the polls to vote on a new constitution that will replace the current one when signed into law, marking a turning point in the country's history.

A majority of voters — 66.9 percent "yes" versus 30.1 percent "no" — agree that the constitution in its current form has failed the Kenyan state as evidenced by the constitutional crisis and mayhem that followed the seriously flawed presidential elections of December 2007.

The violent clashes, political turmoil and mayhem that gripped Kenya as a result of egregious voting irregularities worked to dispel Western-backed notions that the country had become a model democracy that should be replicated elsewhere on the continent.

The country has traveled a long road to reach this milestone. The postelection crisis shattered the notion widely held in the West that Kenya was an island of tranquillity in the tumultuous sea of African politics.

The crisis was not caused by specific actions taken by the then-incumbent Kibaki administration, which, during its five previous years in power, had achieved an impressive level of development goals that were unheard of during the 24 years of the Moi administration — including free education for all children in public schools, access to government health care and extensive upgrades to the nation's road network.

The Kibaki administration, however, was plagued by the historical perception, held by a significant portion of the population, that the administration was dominated by a traditional cabal of Kikuyu elites who controlled the centers of power within the country — a perception that President Mwai Kibaki did little to quell.

For example, the Luos, Luhya and Kalenjin tribes, represent roughly 40 percent of the country's population, and a large part of them are led by opposition leader Raila Odinga of the Orange Democratic Movement. Odinga had long insisted that they had been discriminated against by the traditionally dominant Kikuyu ethnic group, led by President Kibaki for decades and going back as far as the early postindependence days.

On the other hand, the Kikuyu and related central Kenya tribes, including the Meru, Embu, Kamba and Taita, felt strongly that during the reign of retired President Daniel arap Moi, there had been a concerted effort to bankrupt enterprises owned by them and to under-invest in their territories in an attempt to diminish their political clout and economic strength.

They were not about to accept a situation they had blamed for causing them to suffer over the past 2 1/2 decades.

In Kenya, politics is deeply twined with tribal loyalties, pitting Nilotic tribes against Bantu tribes. Complicating the power struggle that followed the 2007 elections were the regional political families — the Moi, Kenyatta, Mundavandi and others — who wield quasi-feudal status. The result was the near-unraveling of the modern Kenyan state.

While this scenario is the one generally taken for granted by the populace, the underlying problem has always been a constitution that has vested too much power in the presidency and has allowed the existence of a weak legislature and an ineffective judiciary, coupled with a culture devoid of a popular desire to perpetuate the rule of law.

Consequently, the presidency became, constitutionally, an imperial office in which politics became a winner-take-all proposition. Many Kenyans agree that there is absolutely no desire in any quarter of the country to see a return to the predicament of January 2008. Hence the country has found the political will to finally vote on comprehensive constitutional change.

The disruption of normal life, as well as the death and destruction that ensued, have deeply affected the Kenyan national psyche, which has always taken pride in the notion that this country is immune to the kind of political violence that has engulfed other African states. National patriotic songs embody this theme.

The new draft constitution included a number of contentious issues, such as abortion language and a provision for Islamic courts that was carried over from the outgoing constitution.

Supporters of the draft constitution argued that any problems with the contents of the bill could be addressed by parliamentary procedures and that the issues of contention were insignificant compared to the risky prospects of going into another general election without a new constitutional framework.

Draft language has decentralized power from the presidency in Nairobi to regional governors with assemblies that are directly elected by citizens. The bill retains an executive presidency while creating a lower and upper house of parliament.

The absence of violence and the results of the referendum itself underscore the unprecedented enthusiasm for the radical constitutional changes.

This important vote couldn't have come at a better moment. The squaring off of political risk in Kenya will have the immediate effect of drawing promises of financial aid and foreign direct investment. All eyes are now on Kenya's leaders as they face an intensive legislative process to implement the reforms approved by the referendum.

The successful and peaceful implementation of reforms will strengthen Kenya's image as the gateway to East Africa and, arguably, as the region's economic and political powerhouse.

Edward Kariithi is a Kenyan analyst based in the United States. Hany Besada is an international consultant focusing on African socioeconomic and security issues.