New Internationalist

Heads I win, tails you lose

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Tabitha Nderitu considers the implications of Kenya’s new constitution.

On 4 August, Kenyans endorsed a new constitution in a referendum pitting a snookered Church lobby – gathered around a motley of politicians opposed to the draft constitution - against the administration of President Mwai Kibaki. It was the second attempt to promulgate a new constitution, which had initially floundered in 2005 after the country split along ethnic lines. The present constitution – adopted in 1963 after Kenya gained independence from British rule – is widely blamed for the excesses perpetuated by successive administrations, beginning with the independent government headed by patriarch Jomo Kenyatta.

The referendum, held two years after the country came close to sliding into a precipice following the disputed results of the Presidential elections at the end of 2007, had the unanimous support of the international community. US President Obama – whose ancestral roots are Kenyan – said, in a statement released by the local US Embassy: ‘The overwhelming approval of the proposed constitution reflects the desire of the Kenyan people to put their country on a path toward improved governance, greater stability and increased prosperity. The peaceful nature of the election was a testament to the character of the Kenyan people.’ Britain, through its Foreign Secretary, William Hague, lauded the Kenyan people, saying ‘this is a landmark decision that raises hopes for a new era of stability and prosperity in Kenya.’ But former Kenyan President, Daniel arap Moi, who during his 24-year reign never tired in frustrating intermittent attempts to draft a new constitution, alleged that the document was flawed, foreign-driven and a creation of the ‘civil society organizations and not the Kenyan people’.

The proposed constitution raises several contentious issues. Firstly, the embedment in the constitution of Kadhi Courts, which will cater exclusively for Muslims, to the exclusion of courts of other faiths in the Draft and paid for by the State. Secondly, there is ambiguity regarding the issue of abortion, notably over when life begins. Thirdly, the disparate devolvement of administrative counties – should population or geographical size be the determinant factor? Fourthly, there is the emotive issue of land ownership with wrangles fixated on ancestral tribal grievances, including tenure involving foreign firms. Finally, the adoption of international conventions considered by some to be alien to African culture, such as the tacit acceptance of homosexuality.

The President has 14 days from the date of the referendum to sign the new constitution into law. To amend a contentious clause in the new constitution will require a minimum one million signatures drawn from across the country. Official results showed that 5.9 million people backed the draft constitution while 2,7 million were opposed to it out of a total of 12,.5 million registered voters, which means 2.8 million abstained. On balance, the road ahead looks auspicious but in reality the real work has only just begun. Those who backed the constitution know that they will have their way, but the voices of the minority who opposed the draft constitution still need to be heard. Otherwise Kenya may return to the dark days.

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