Millions of words have been written on Kenya's constitutional reform process. Therefore given the chance to add yet more words to his vast literature I would like to address some issues that have not been given the attention they deserve – the importance of tactics and accident in getting where we are now – and to acknowledge the role of some individuals who were instrumental to the process, but have not received the international attention the principals, President. Kibaki and Prime Minister Raila Odinga, have.
It has recently become fashionable in Kenya to note the “hard part” starts now with the enactment of 49 pieces of subsidiary legislation. Nonsense, the 'hard part', at least in terms of constitution-making is over.
Nothing can compare to this 20 year struggle to produce this document. There have been plenty of ups and downs, delays and reversals. It was supposed to kick-off with introduction of multi-party democracy in 1992. Moi promised 1995 was the 'year of the new constitution'. Kibaki promised a new constitution within 100 days of taking office in 2003.
Moreover it has exhaustively inclusive – even as an annoying twelve-year old I received a response to my contribution from the former review chairman Prof. Ghai and reformist MP Paul Muite. This inclusive process has generated a real sense of ownership, this constitution has not come from an ivory tower. With such ownership this constitution will not easily be undone, in the way Uganda's has for example.
Kenyans know their constitutional law, for example it is quite common in Nairobi to have an advanced discussion on the separation of powers with anyone. Unfortunately Kenya's broader process of democratization has also had a darker side: many lives have been lost in political and ethnic violence. Still, the blood, sweat and tears of Kenyans was not enough to deliver a new constitution. Kenyan politics was stuck. It was easy for politicians such as Mwai Kibaki to promise reform in opposition, but become reluctant when in power. Turkeys do note vote for Christmas.
Genuine reform threatened to upset vested interests. It is down to chance and circumstances that these obstacles were overcome. Firstly, Kibaki was after the disputed election a second term President, not eligible to run again. Therefore he was less interested in opposing reforms that would mainly constrain his successor, not him. Indeed the enormous value of term limits should be clear, throughout Africa they have helped midwife political change by changing the incentives of the incumbent. Moreover that disputed election threatened to tarnish his legacy, helped concentrate minds at home and renew pressure abroad. It is a cliché, but it took crisis to bring real reform.
In the aftermath of the crisis Kenyan MPs passed legislation to re-start the review process. Martha Karua drew up a watertight bill that basically put the process on auto-pilot. If politicians failed to play their role, there were mechanisms for the process to continue. It is puzzling that Kenyan MPs passed such bold legislation that bound them to completing the reform process. The answer is simply they were sleeping, not paying attention to the laws they were enacting. Indeed several MPs, including, William Ruto, leader of the 'No' Camp, later expressed surprise at provisions that only required a simple majority to pass the document on to the referendum stage, but a two-thirds majority to amend it. We owe our new constitution to such accidents. In comparison it will be much easier to pass the 49-odd subsidiary laws, the threat of dissolution and attendant loss of perks will keep our MPs working.
This new constitution, despite being the product of a messy political compromise, is a good document. At one stage the reform process became bogged down in a battle between proponents of presidential and parliamentary systems as well as advocates of various hybrids.
Credit is due to the young, first-time MP, Abdikadir Hussein Mohammed, as chairman of the parliamentary select committee for helping craft a genuinely presidential system with stringent checks and balances that nobody loved but nearly everyone could live with.
There are a number of other desirable reforms included:
- The President must win over half the votes in an election, with provision for a run-off. This will prevent a candidate lacking broad national support being elected because of ethnic splits.
- Key Presidential appointments require parliamentary approval.
- The old Kanu tool of executive political control, the Provincial Administration is abolished, replaced by a system of devolution.
- The sharing of power and revenue through devolution should help reverse the marginalization of parts of Kenya. More importantly it means groups that do not capture the presidency are not locked out of power all together.
- Constituencies have to of a nearly equal size with limits on how much their populations vary, ending a long history of gerrymandering.
These reforms are not a boilerplate wish-list, they are not prescriptions of motherhood and apple pie. They change the incentives political players face and have the potential to transform politics.
It is customary for pieces on Kenya to note our troubles with our northern neighbour Somalia. I would like to end on a different note and point to an observation made by Charles Onyango-Obbo, that if Kenya has a 'Somali headache' it also has a 'Somali dividend.' With mistrust between the larger ethnic groups, Kenyan Somalis are called upon to act as neutral brokers. They have certainly risen to the task. Abdikadir Hussein Mohammed, mentioned above, is a Kenyan Somali from a unprivileged background who through hard work made it to Harvard. The chairman of Interim Independent Electoral Commission, Issack Hassan who made sure the referendum was the most credible electoral exercise in Kenya's history is another Kenyan Somali. They are amongst the finest public officials we have.