Kenya's new constitution

Overwhelming endorsement for the new constitution could be a major turning point. But only if an ambitious long-term process made by the people for the people can protect itself from sectarianisms old and new
John Onyando
9 August 2010

Even before its ratification of a new, more inclusive constitution on 4 August, Kenya was well regarded as a democratic state. Notwithstanding rampant corruption and sordid human rights record, this country’s robust media, civil society and free market traditions have enabled it to achieve a level of openness unparalleled elsewhere on the continent.


Demotix / Ronald Kabuubi, All Rights Reserved

It was indeed a big shock internationally when, in 2008, Kenyans killed each over an election result, barely five years after uniting to democratically depose a liberation party that had entrenched itself for decades. Kofi Annan, the former UN secretary general who mediated the deadly crisis, stressed during the campaign that this referendum presented the only viable way for Kenya to resolve long-standing grievances and the impunity that has distorted the nation’s political life.

With seven of eight provinces convincingly endorsing the new constitution, Kenyans are again relishing a victory that only unity can bring to such a divided people. However, this campaign also revealed that old sectarianisms are festering, and new ones emerging that Kenyans should begin to deal with immediately once the new constitution is enacted.


Demotix/Ronald Kabuubi. All rights reserved

That there was no violence testifies to the reconciliation that President Kibaki and Prime Minister Odinga have embarked on in recent months. The awareness of political affairs among Kenyan youth is also remarkable and transcends tribe. Voting, however, was still primarily along ethnic and, in some cases, religious lines. Thus, most Kikuyu, Luo, Luyia, Kisii and allied tribes voted massively in favour of the new constitution, as did Muslims and minority religions.

Also evident was the role, potentially divisive, that a new breed of right-wing Christians – with strong links to American evangelicals – could play in Kenya's future politics. They introduced an extremist angle that destabilised a decade-old consensus on Kadhis courts that mainstream Christians had supported throughout the decade-old constitution review exercise.

Religious divisions peaked on Sunday 13 June when three grenades exploded at an evangelical-led rally to oppose the constitution, killing thirteen people, including two children. Even as others were pointing fingers at the security services, whose top leaders will be retired under proposed reforms, the organisers promptly blamed the attack on militants from neighbouring Somalia, whose Kenyan kinfolk overwhelmingly favoured the new law.

What followed was a passionate campaign against perceived Muslim gains under the new law by church leaders and their political father, William Ruto, who relentlessly predicted religious conflict if the yes campaign won. The constitutional Cohesion Commission had to reprimand the minister, but not before fringe Muslim groups had upped their own rhetoric.

Such bigotry is completely inimical to the religious equality and freedom that is at the heart of the new constitution. But religion – in Kenya a byword for Islam – is gelling with traditional tribal divisions in a manner that will pose long-term challenges not only to security but for development and even sovereignty.

 Kenya's referendum - all rights reserved

Demotix/Ronald Kabuubi. All rights reserved

Erstwhile subtle correlations between growing trade by ethnic Somalis and Indian Ocean piracy have been made with increasing intensity in recent months. Some consequences of the long-running war in Somalia, like the inflow of refugees into Kenya, were explicitly cited as Somali excesses. According to conventional wisdom, Somalis have invaded Kenya, raising property prices and dislocating traditional trading communities.

The entrepreneual capacity of Somalis that has flourished over the last decade can only accelerate under the new constitution that seeks to empower grassroots prioritisation of development around the counties. So while the generalisation of any wealth as illicit is sinister, as Kenya prepares to create laws around the new constitution, care must be taken to ensure that policies are genuinely inclusive, fair and conceived to facilitate, not impede, the entrepreneurial capacity of all Kenyans.

Issues that infuriate Muslims, like discriminatory security operations, should under the new constitution be pursued in a way that curbs rather than enhances extremism, and does not undermine national inclusion. Beyond national law, which will continue to be insufficient as the new constitution is implemented, refugee issues should be handled in full conformity with international laws which reflect decades of meticulously conceived legislation and reflect the aspiration of human security.

No one is precluded from contributing ideas how the new constitution should best be implemented. President Kibaki and Odinga have created a broad coalition of reformers from among youth, civil society, business and professional groups. It is this coalition which in fact championed the yes campaign when key politicians were still reluctant. Such teamwork, which they rededicated themselves to upholding on Thursday, will be vital in translating the new constitution into reality. Civil society in particular should seize this goodwill for reforms and propose guidelines for implementing the new constitution’s principles of justice, equity, human rights and integrity guaranteed in public administration.

The international community must also continue to ensure that the leaders never lose focus on the implementation of the constitution, which they could easily do if that proves expedient to their calculations for elections in 2012. It was good seeing the US and EU diplomats stressing at their Thursday media briefing the onerous responsibility of Kenyans to follow the constitution’s passage with diligent institutional reforms within the stipulated time limits, since international support for the implementation of the constitution will be important for its success.

Lastly, while a concerted cross-sectoral programme is undertaken in all marginalised areas, Somalis should accelerate their efforts to make their own struggles a more explicit part of the process of national democratisation and regional security building. They must cooperate with other Muslims as well as non-Muslims in advocating for a political resolution to the Somalia conflict, whose burden weighs heavily on Kenyan Somalis.

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