Kenya’s constitutional renewal: A post-referendum analysis

The official adoption of the new Constitution was greeted with a collective sigh of relief following the tumultuous series of events that had plagued the country over the last five years. The previous constitutional referendum held in 2005 entrenched deep political and ethnic divisions in the country. The political formations that emerged out of the 2005 constitutional referendum coalesced into the Orange Democratic Movement (ODM), led by Raila Odinga, and the Party of National Unity (PNU), led by Mwai Kibaki. These divisions, which were based on ethnic coalitions, subsequently contested the presidential and parliamentary elections in 2007.

The 2007 presidential poll was marred by allegations of irregularities and electoral fraud. The refusal of the incumbent, Kibaki, to relinquish his seat to his opponent Odinga, claiming that he had in fact won the poll, unleashed a cycle of violence in the months of January and February 2008. Across the country, the violence led to the death of approximately 1,300 people and the internal displacement of close to half a million people. The violence was ultimately tempered through the mediation of the African Union (AU) Panel of Eminent Personalities, led by Kofi Annan, the former secretary-general of the United Nations (UN). On 28 February 2008, the main political parties signed a National Accord and Reconciliation Agreement and one of the items agreed upon was the establishment of a new Constitution which would be adopted through a national referendum. This process was finally concluded through the poll and the promulgation of the new constitution.

The legacy of this 2008 post-electoral violence still reverberates across the country. Deep psychological scars are still evident among the Kenyan populace, and therefore the successful transformation of the constitutional order without any major incidents of violence will remain a historical landmark for the country.

This significance of the new Constitution should not be underplayed. The new charter will usher in fundamental changes that has the potential to significantly alter Kenya’s political and socio-economic landscape. Above all it is the first home-grown and indigenous constitution given the fact that the previous constitution was developed as part of the decolonisation process and was therefore heavily influenced by British norms of government and jurisprudence.

The new Kenyan Constitution, like most constitutions around the world, borrows from the constitutions of other countries. The outgoing Constitution granted Kenya’s president imperial powers and the ability to effective control the executive and judicial branches of government and a tremendous leeway to manipulate and coerce the legislature. This framework was ruthlessly exploited by the country’s first three presidents, Jomo Kenyatta, Daniel Arap Moi and Mwai Kibaki, who entrenched a debilitating system of political patronage and created a permissive environment for corruption and the misappropriation of state land to private individuals who were politically connected. This is the primary reason why the majority of the country’s people have become deeply impoverished without access to the basic services of health care and good education.

The country’s infrastructure has also lagged behind as ‘tenderpreneurships’ fostered by a political and business kleptocratic class of ‘wabenzi’ led to the massive economic mismanagement of state funds and self-enrichment. It is well known fact that the families of all of Kenya’s post-colonial presidents and their close advisers are among the wealthiest in the country, while an unsustainable number of citizens live below the World Bank poverty line, earning less that US$2 a day.

The new Constitution seeks to introduce a system of checks-and-balances that will strive to keep future presidents from exploiting the state for their own personal gain. In particular, the new Constitution establishes a bi-cameral parliament, with a legislative assembly and a Senate. The Senate will have a limited role in developing legislation and will primarily function as a checks-and-balance mechanism for legislation developed by the Members of Parliament (MPs). The Senate will also be able to exert oversight on the activities of the executive. In particular, a future Senate will be able to impeach the president of Kenya if circumstances require this to be done.

The Parliament has powers of accountability including reviewing the conduct of the executive, including the president, and exercising oversight over other state organs. In order to entrench the accountability of MPs to the people, the proposed Constitution also provides for the right to recall parliamentarians. A notable feature of this new constitution is the extent to which public participation in the conduct of parliament has also been made a constitutional obligation.

Geographically, Kenya will now be divided into 47 counties which will be headed by an elected governor. The Constitution also stipulates that 15 per cent of the national budget will be disbursed to the counties for their own developmental, education and health initiatives. This will ensure that state resources are not monopolised by the metro pole or entirely controlled by the national government, but equally distributed to all sections of the country.

The new Constitution will also entrench a Bill of Rights as well as promote gender equality. In particular, the Constitution stipulates that as a general rule state institutions should not have more than two-thirds of one gender to the exclusion of the other. Furthermore, the Constitution has established a framework for the comprehensive review of land reform. It creates legal protection against corruption to enable businesses to flourish, unhindered by state exploitation. If the provisions of the new Constitution are upheld Kenya could gradually become a place to do business without fear of bureaucratic or political heavy-handedness. The Kenyan government is planning to issue government bonds to finance one of its major challenges, namely infrastructure development.

The reality of constitutional change, as the South African experience shows, is that political behaviour will not change overnight. The Constitution is ultimately a piece of paper that requires citizens and all sectors of society to remain vigilant and ensure that its provisions are not undermined by vested political interests.

One guarantee is that new constitutional orders will always remain under threat if they are not accompanied by a behavioural and principled change towards upholding ethical leadership. As recent events and debates in South Africa about the proposed media tribunal have demonstrated, the Constitution is not able to defend itself. Citizens, journalists, politicians and the business elite have to constantly fight to maintain constitutional integrity. The Constitution is constantly under threat from forces within countries that seek to undermine democratic accountability and transparency. The old adage that power corrupts remains valid. Even diffuse power can still lead to diffuse corruption.

Kenya is in effect a post-conflict country given the reality of the 2008 post-electoral violence. Peacebuilding and reconciliation are therefore necessary in order to address the simmering tensions generated by this violent epoch. Mutual suspicion and ethnic tension has not been eradicated. While a new Constitution can facilitate the revitalisation of the political landscape, societal healing will require a greater degree of intervention at the national and community level. In this regard, the embattled Kenyan Truth, Justice and Reconciliation Commission (TJRC) has to be revived and be permitted to document the grievances and atrocities committed in the past. Unless Kenyans can confront their past and come to terms with it, even a new Constitution may not be able to prevent the revival of ethnic animosity and competition which would not augur well for national stability.

Ultimately, the role of each Kenyan citizen will be to remain an active guardian of their, and their fellow citizens, hard worn freedoms. This will be vital towards ensuring Kenya’s constitutional renewal.

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* Dr. Tim Murithi is Head of the Transitional Justice in Africa Programme at the Institute for Justice and Reconciliation in Cape Town, South Africa. www.ijr.org.za He also contributed a chapter entitled: ‘Aid Colonisation and the Promise of African Continental Integration’ to the recent Fahamu publication ‘Aid to Africa: Redeemer or Coloniser?’ published in 2009 and edited by Hakima Abbas and Yves Niyiragira.
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