Kenya: Constitution promises a fresh agenda

Kennedy Abwao

Kenya’s constitutional referendum in August 2010 has put the country on the road to political reconstruction although an enormous amount of fine-tuning remains to be done

Following the violent political crisis of early 2008, Kenya’s efforts to return to its usual path of peace have shown considerable promise in recent months. A major turning point was reached with the country’s referendum of 4 August, which produced an overwhelming “yes” vote for a new Constitution.

Dr Ekuru Aukot, who directed the Committee of Experts that authored the Constitution, says that it tackles some of the problems that led to Kenya’s political crisis. “The biggest issues are the system of governance, the distribution of resources to the counties, the judiciary and the creation of the governance institutions,” he says.

Following the crisis – in which 1,300 people were killed and 600,000 people were displaced from their homes after the disputed December 2007 election – a panel of eminent African personalities, led by former UN Secretary-General Kofi Annan, noted: “A political settlement is necessary to manage a broad reform agenda that will address the root causes of the crisis.” The way the new Constitution seeks to provide the basis for this settlement is by reducing the President’s powers, devolving power from the central government to the regions, creating a commission to deal with the allocation of land, and establishing a Senate, a Supreme Court and Muslim (Kadhi) Courts. It also creates 47 county governments and, with the anticipated vetting of judges and magistrates, overhauls the judiciary.

The 2007 elections generated a confrontation between President Mwai Kibaki and his rival Raila Odinga over who was the true winner – an outcome that stirred fierce fighting in different parts of the country, some of it apparently pre-planned. Kalenjin warriors from the Rift Valley targeted neighbouring Kikuyu families and their property in a series of coordinated attacks, accusing the Kikuyu elite of grabbing Kalenjin land. In Nairobi and Naivasha there were attacks by Kikuyu gangs on members of Odinga’s Luo tribe.

It was only after Kofi Annan’s mediation of February 2008 that the current coalition was established, allowing Odinga to become Prime Minister, with powers to supervise government, while Kibaki retained the presidency. A retired South African judge, Johan Kriegler, was called upon to probe the elections and suggest ways to rectify its failures. He concluded the elections were so defective that it was impossible to establish the true winner and recommended the dismissal of the Electoral Commission of Kenya as a confidence-building measure.

Another commission under Kenyan Court of Appeal judge Philip Waki blamed the violence on the “personalisation of power” around the presidency and on perceived historical inequities – mainly the lack of economic empowerment among many ethnic groups and the biases in the allocation of land and other resources. Waki’s team opted for police reform and the creation of a local tribunal to probe politicians who bore the greatest responsibility for the violence and, in case this proved ineffective, dossiers were also sent to the International Criminal Court in The Hague.

Leading Rift Valley politician William Ruto was among those who opposed the new Constitution in the August referendum. He had teamed up with church leaders to campaign for rejection, arguing that the document failed to guarantee cardinal principles, such as the right to life, by permitting abortion, and that it challenged Christianity by its creation of Muslim courts. Former President Daniel Arap Moi also joined in the “no” campaign, though his involvement served to emphasise that the clauses on land were hardly in his interest, as he had distributed so much of it during his time. Ruto then lost his position in the coalition government in October as investigations into his own land dealings were pursued.

The new Constitution – now being put into place by a whole series of commissions – will help to lessen tensions around the previously all-powerful presidency, according to Kamotho Waiganjo, an advocate of the High Court of Kenya who teaches law at Nairobi University. He adds, “The devolution of power resolves some of the latent reasons why Kenyans went to war in 2008.” He sees the distribution of power to the counties and the creation of more effective political checks on abuses of office as critical steps that could boost the fight against corruption. “By creating independent watchdog institutions, the new law gives Kenyans an opportunity to effectively check the state leaders,” he says, pointing out that the office of the Director of Public Prosecutions now has full independence and security of tenure.

Constitutional expert Dr Aukot is confident that the separation of powers between the executive, the judiciary and the legislature and the creation of capable governance institutions can help prevent future crises. But political analyst Fred Oluoch warns of difficulties in implementing the reforms ahead of the 2012 presidential elections. “The past three regimes – Jomo Kenyatta, Daniel Moi and Mwai Kibaki – used the judiciary to further their political agenda by appointing judges friendly to their cause,” he says. “The Kenyan public is yet to regain faith in the judiciary, even with the coming of a new constitution.”

Parliament’s first major task when it reconvened after the referendum was to form a Constitution Implementation Oversight Committee of 27 parliamentarians to steer the passage of the 49 laws required to implement the Constitution. Judges have publicly expressed fears over the vetting process, especially after so-called “radical surgery” led to the suspension of 23 appellate judges and 282 magistrates. Only five judges, who agreed to face an inquiry, were cleared. High Court judge Mohamed Ibrahim said: “Let those vetting us apply fairness, non-discriminating feelings and principles of justice.”

Renewed vigour in efforts to attack corruption is being shown by the Constitution’s clear separation of roles, allowing Parliament to check the executive more effectively than in the past. The Kenya AntiCorruption Commission, under its new director-general Patrick Otieno Lumumba, recently moved against the influential Foreign Minister Moses Wetangula, forcing his resignation after he was accused of failing to stop the loss of funds within the foreign ministry. The Mayor of Nairobi, Geoffrey Majjiwa, was also forced to resign over a scandal involving the purchase of land. Other high profile resignations have also taken place in the armed forces after Parliament questioned the purchase of military jets.

The overall hope is that the introduction of these major constitutional changes will in future allow the election of a President who is nationally acceptable to all ethnic groups. The new Constitution requires a President-elect to garner 51 percent of the votes cast in a general election and at least 25 percent of the votes cast in half of the 47-newly-created counties across the country. This would go a long way to reducing ethnic tensions and averting the prospect of politicians using one tribe against the other.

“With the 50-plus-one requirement and the inability to offer much to ethnic groups, candidates for the presidency will require to be more than just tribal chiefs,” says Waiganjo, who sees the political direction gradually shifting from the all-powerful central government to the devolved county authorities. “Since the counties are largely based on ethnic groups, this may lead to more ‘ethnopolitics’ at the county level, but reduced emphasis of ethnic politics at the national level,” he adds.

Some 49 pieces of legislation have to be passed before the new Constitution can function effectively, and the implementation phase faces a competition of interests, especially as politicians seek advantage ahead of the 2012 elections. With so much at stake, Kenyans will be following the passage of legislation through Parliament more closely than they ever have before.

About the author:

Kennedy Abwao is Bureau Chief for the Pan African News Agency in Addis Ababa


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February 9, 2011 7:23 am

Something tells me nothing is going to change. After all a consitituion is just a piece of paper. I am still to hear a story which says after the consitution things took a turn for the better…maybe “after the elections”… of “after the war”. In essence its all about the personnel.

February 11, 2011 1:01 pm

NO I disagree Tommmc. A new consitution although it may ostensibly look like just a piece of paper is a template that all the government, legisalture and judiciary can work with. This one is even much bigger than one let alone two pieces of paper will create a two-tier parliamentary structure, in some ways similar to the U.S. system of a Congress and Senate..Put more simply, it would remove power from a powerful presidency and create a more decentralized political system. How many pieces of paper is that..think again

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