Kenya’s fruitless referendum

Wanyama Masinde
21 November 2005

A tragic result of the introduction of liberal democracy in Africa is periodic elections. Yes, this is not a misprint: elections are a tragedy because they almost always result in the re-election of the same “bad” leaders or their replacement by a new set of “bad” leaders. But Kenyans are this year especially unlucky! As if routine electioneering every five years is not dangerous enough, an extra opportunity to vote has been thrust upon them, in the name of a new constitution.

Kenyans go to the polls today, 21 November 2005, to vote on the proposed constitution. The energetic arguments of the “yes” and “no” camps – symbolised by a banana and an orange respectively – have been interrupted by violence from police against demonstrators: seven people have been killed and many more arrested in the course of the campaign. But even more disappointing is the fact that the whole referendum process has betrayed the high hopes of clean government and a fresh start raised among Kenyans by the election in December 2002 of a new government to replace the long rule of President Daniel arap Moi.

The draft constitution – designed to replace the country’s founding document of 1963 when it achieved independence from Britain – emerged from a national conference inaugurated after the 2002 election of the new president, Mwai Kibaki. But the draft was subsequently amended by the attorney-general Amos Wako to reverse any reduction in the powers of the president. The result of this politicisation of the constitutional process has been that Kenyans are being asked to vote not on a document of principle but on one that has been tainted by the interests of power.

Kenya’s democratic travails

Kenyans are therefore voting “yes” and “no” about more than the constitution: a “yes” vote is one for President Mwai Kibaki whereas a “no” vote is indeed a “yes” for his opponents.

My editor asked me to highlight the issues in the referendum. Issues? Who needs issues! I laughed silently. Despite the fact that many Kenyans wanted a new constitution, they are now doing battle but not over the draft document really; it is a time to settle old political scores.

All agree that the draft constitution is better than the current one and that the option of not voting “yes” is to remain stuck with the much maligned one, but no one is talking about that eventuality; the reality is that the draft is either good for the banana camp or bad for the orange one.

What is the situation in Kenya then? Mass confusion! Politics and more politics: lies, vendetta, demagoguery, theatrics, anything goes. Miserable Kenyans, you might think, but wait! Kenyans still flock to rallies to listen to politicians, as their source of free entertainment. True, for some members of the audience it does get to be too dear when they have to pay the ultimate cost – death when rallies turn violent. Do the politicians care? Not if it gives them free publicity and sympathy votes!

Kenya’s journey towards constitutional change is long and winding. The Kenya African National Union (Kanu) was in power since independence in 1963 until it lost power in 2002; in the 1980s and 1990s it resisted the replacement of the independence constitution with a new one. These calls were correctly perceived as a challenge to the long-serving President Moi’s rule.

A once fragmented opposition joined forces to forge a National Rainbow Coalition (Narc) to defeat Kanu in 2002. The Narc’s two camps are the National Alliance Party of Kenya (Nak) of President Kibaki and the Liberal Democratic Party (LDP) of the Prime Minister, Raila Odinga. Now, these two groups did not join hands because of their immeasurable love for the people of Kenya, or for one another, but solely for convenience: it was the only way that Kanu could be vanquished. So they signed a memorandum of understanding (MoU) in which Odinga was promised the post of prime minister (forget that no such position existed in the constitution)! The promise was that this post was to be written in to the new constitution, and that the LDP would be given an equal share of ministerial appointments to those of the Nak.

It is on account of this last promise that Kibaki’s troubles started – in the first week of his presidency! The LDP started grumbling about its “raw deal” as soon as Kibaki named his cabinet. Since then, the coalition partner has developed into the real opposition, while Kanu has been increasingly fragmented.

The constitutional conference to draft a new constitution was the LDP’s opportunity to hit back at Kibaki and to satiate its appetite for power. The delegates at the conference had been handpicked in the Kanu era as the then opposition boycotted the process and only came on board much later. The LDP and Kanu therefore easily manipulated the delegates to their advantage and created a powerful position of prime minister for Raila Odinga. Outplayed at the conference, the Nak took the draft to parliament and easily had it amended to reduce the powers of the prime minister to the benefit of the presidency; besides, the prime minister was to be appointed by the president.

President vs prime minister

The main grievance of the orange campaign is supposedly that the president is too powerful, but one needs to see the MoU at play here. Kenya’s proposed model is not dissimilar to Tanzania’s. There are two sources of tension: that the prime minister will be too weak and that the president will appoint the prime minister from among members of parliament and not specifically from the leader of the dominant party/coalition.

This effectively means that Odinga is not assured of being the prime minister and could be passed over for his opponent – and even if he was appointed he could just as well be sacked! The draft therefore fails even to honour the agreed memorandum, and Kenyan citizens are therefore held to ransom by two groups fighting for two individuals over a deal designed to benefit political interests.

The battle, in short, has been reduced to a vote for Kibaki or for Odinga. With this scenario, many Kenyan voters are little bothered about reading and understanding the draft document. They are out today to vote on the basis of ethnic loyalties – as their “leaders” will have asked them to. Who said that Africa has no weapons of mass destruction? What would these politicians who impoverish Africans, destine them to a life of misery or a brutish loss of life be classified as?

The question of corruption

Kibaki’s fortunes seem to have dwindled further when his record in fighting corruption is considered. This is a platform on which he was elected yet little has been done despite putting in place a plethora of institutions to help in the battle. That his associates stand accused makes things worse. Voting “yes” has come to mean voting for the corrupt lot in power.

The fight to rid the country of corruption is projected as either too weak, or vindictive; this is especially clear over the previous regime’s Goldenberg scandal (where huge sums of money were siphoned out of the treasury in the name of paying export compensation for non-existent gold and diamond exports) and more recently the Anglo-Leasing scandal that saw money paid to a company in Liverpool (the money paid out in this scandal has largely been recovered but the identity of the beneficiaries remains a mystery).

If there is anywhere that the opposition has triumphed over Kibaki, it is in the ability to exploit the media. Kibaki’s government, despite good performance on the economic front, faces a very hostile media. Most output from the media in Nairobi is coloured by either orange or banana interests. The establishment media is largely Kanu-controlled. Malcolm X once said that the media is the most powerful entity on earth – it has the power to make the innocent guilty and to make the guilty innocent. This is an attribute that the “no” team has exploited to the full.

The media has been used as a surrogate to fight political wars, and the fight against corruption has effectively come to a halt. The demands made are solely on fighting the so-called new (post-2002) corruption. This is indeed one of Kibaki’s failures, but he has faced resistance in attempting to fight old corruption. Kanu and LDP MPs, for example, protested at efforts to summon President Moi for questioning over the Goldenberg scandal. Besides, when former powerful Kanu members have been arrested, the party’s MPs have demand their release on the grounds that the action is “political”.

Kanu and the LDP are cavorting with different intentions. While Kanu wants to protect its own against prosecution, LDP supports Kanu just to hit back at Mwai Kibaki. The result is that easily excitable Kenyans have been tricked into forgetting Kanu’s dark days of corruption and economic mismanagement. It seems that no one will ever be convicted of corruption. The formerly corrupt people are now the “clean guys” accusing those in office of corruption!

The fight against corruption is a rough one – the turbulence in Malawi, the post-Chiluba period in Zambia, the trouble for Thabo Mbeki in South Africa over his sacked deputy Jacob Zuma’s supporters is evidence enough. Yet Zambia’s Levy Mwanawasa and Malawi’s Mbingu wa Mutharika have remained on course despite meeting stiff opposition. This is where Kibaki failed: by keeping his tainted henchmen, he lost the moral authority to carry out the fight.

Who then will fight corruption in Kenya? Kenya needs courageous people that have no political interests to fight corruption. A former senior government official charged with the fight against corruption could not survive the Kenyan heat and now prefers the British winter; reminiscent of a soldier taking off from the battlefield with the claim that it is too dangerous out there!

The succession and democracy

Kibaki, after the death of his first deputy president, Wamalwa Kijana, appointed the elderly Moody Awori, who though a man of impeccable character is too old to succeed him. This effectively means that Kibaki might want to replace himself come the next general elections, due in 2007. With this in mind, it makes it impossible for Kibaki to fight corruption; a battle that is indeed nasty since it might mean prosecuting friends and risk ending up in loneliness, or rounding up opponents and being accused of vindictiveness; whichever way lose votes.

However, all is not lost. Kibaki could still choose the good of the nation over self-preservation and rid himself of all associates implicated in corruption and let the unhelpful courts handle their case. If Kibaki is unable to confront vested interests from the opposition and tackle old corruption, he could as well step down for three months, a period within which he should ask Moi to return to power and hang his own men!

Democracy also means the separation of powers and the result is not admirable. Well known pilferers of public funds have faced court in the morning and by late afternoon dance their way out of it smiling, a multitude of supporters in tow, after being granted bail; Kanu/LDP theatre! Perhaps victory can only come the Chinese way: hang them all!

Where is the opposition?

Kibaki’s indecision makes one wonder why a president needs immense powers, if he cannot use the authority to exercise them. Cabinet meetings cannot be held since Kibaki’s opposition is inside it. The LDP team is with the opposition, while the old ruling party Kanu is part-government, part- opposition – for Kibaki incorporated sympathetic Kanu MPs into his cabinet to gain support after the LDP rebellion. In Kenya, government is opposition, and opposition is government.

Kenya once had a very vibrant civil society but this is no more. Civil-society activists were quickly given government appointments as reward for their fight for democracy or to implement the good governance that they always preached. How things change! Kenya is ruled by civil society … so why is corruption still evident?

The rest of civil society has turned orange and is no different from the politicians. Civil society should remain where it is, “out there” and not be in government; independence is its lifeblood.

Kenya needs a fresh start.

What next for Kenya?

Mwai Kibaki’s greatest mistake was to promise the people a new constitution in a given time frame without being aware that in a supposed democracy, constitution-making involves many people and it is not easy to come up with an agreeable draft. Still, it is a political document and with pluralism you better have friends first. Kibaki should have started by appeasing everyone – that is, if he was interested in a new constitution at all.

A “yes” or “no” win will not result in any constitutional vacuum. Kibaki will trot on, whatever happens – though a “yes” victory will be a confidence boost to him, and perhaps a prelude to him striking down his opponents, while a “no” win will demand that he makes new alliances. A “no” win would shame Kibaki for supporting a losing side and will also bring accusations that he failed to deliver a constitution, which he promised at his inauguration.

The “no” team is threatening to exploit people’s emotions and call for street demonstrations if the banana camp prevails. It talks of a constituent assembly to rewrite a document in a way favourable to it. But this is not within the law, so there is fear of more violence.

Meanwhile, what is the future of democracy in Kenya if serious political issues are evaded and personality cults, conspiracies, intrigues and power-games determine national leadership? Voters have not been given a real opportunity to read the draft constitution, and even if they did it would not matter since they will largely vote on the basis of ethnic loyalty; you vote for what your ethnic chief tells you so that at the end we have a bad constitution or a good constitution depending on which community has a higher birthrate or was reaping state benefits at the time!

At the end of referendum day, one side will win and the losers will grumble about rigging. There might be a few skirmishes, with the police coming in to beat up anyone in sight. However, most Kenyans love being left alone to carry out their own business in peace and so the politicians will have no choice but to get over with this drama and return for another act in the drama in 2007, the year of the next elections.

Democracy in Africa: voting, voting and more voting. The results? The endless cycle continues!

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