Many Kenyans as well as foreign observers have welcomed the result of Kenya’s constitutional referendum on 4 August 2010, which gave overwhelming approval to the document. The relief at the clear outcome and peaceful process indeed makes it tempting to see this moment as a new beginning.
But it is also as well to be cautious, for we have been here before. Over the past fifty years, Kenya has witnessed many moments of apparent transformation followed by disillusionment and despair. The country’s independence in 1963 was but the first such episode; the death of the first president, Jomo Kenyatta, in 1978, was another; then there was the restoration of multi-party politics in the early 1990s; and, a decade on, the defeat of the Kenya African National Union (Kanu) by Mwai Kibaki’s National Rainbow Coalition in October 2002.
Most pertinent of all in this series is the lesson of the constitutional referendum of 2005. Then, a large majority of Kenyans angered by government manipulation of the reform process rejected a much watered-down constitutional draft as it failed to deliver the widely demanded devolution of power and limits on the presidency. The peaceful conduct of that referendum, coming so soon after the similarly (relatively) calm elections of 2002, fooled many into believing that Kenya had turned a page in its political history. But that hubris was shattered by the violence that followed in the wake of the elections of 27 December 2007.
The religious regress
In this perspective, the most striking feature of the constitutional referendum was not the result. Instead, it was the stance taken on the new constitution by Kenya’s churches. In the 1980s and 1990s, the churches were at the forefront of the sustained campaign for constitutional reform. Today, the churches stand accused of attempting to block the path of reform. The men and women of the cloth stood alongside an unedifying bunch of politicians at the head of the “no” campaign on the grounds of the inclusion in the draft constitution of clauses related to abortion and Islamic courts.
The religious opposition to the proposed constitution was led by the National Council of Churches of Kenya (NCCK, the main umbrella-body of the Protestant church), the Catholic hierarchy in the country, and some of the largest Pentecostal churches. Church leaders followed the lead of Canon Peter Karanja, the NCCK’s secretary-general, in actively campaigning for Christians to vote “no” in the referendum. True, not all clergy agreed. Some veterans of the democratisation struggle (including Revered Timothy Njoya, Archbishop David Gitari and Father Ambrose Kimutai), as well as individual independent churches, supported the proposed constitution.
The churches here are revisiting much older arguments. For despite the churches’ role in Kenya’s democratisation movement from the mid-1980s onwards, there has been continuing if only half-voiced internal dissent to that involvement in secular affairs. Indeed, the uneasy relationship between religious groups and the Kenyan state is the ostensible reason for at least the Protestant churches’ objections to the proposed constitution. Many Christian leaders were outraged by the inclusion of provision for kadhis’ courts within the document. These Islamic courts adjudicate matters of personal and family law in cases where their jurisdiction is recognised by all involved in particular cases. Their inclusion in the draft, depending on which Christian critics are speaking, either contradict the separation of religion and state or unfairly privilege one religion over another.
In fact, kadhis’ courts have been recognised by the constitution since independence as part of the agreement by which Zanzibar surrendered its historic claim to Kenya’s narrow coastal strip. But rather than make a concession necessary to ensure the territorial integrity of the Kenyan nation-state and a rare official endorsement of multiculturalism, the churches instead view the kadhis’ courts as indicative of an emerging trend of Islamic radicalism in Kenya.
An agreement signed by various church leaders in February 2010 is explicit: “It is clear that the Muslim community is basically caving [sic] for itself an Islamic state within a state. This is a state with its own Sharia compliant banking system; its own Sharia compliant insurance; its own Halaal bureau of standards; and is now pressing for its own judicial system.” In truth, however, the kadhis’ courts are anything but a covert instrument of Islamic radicalism; they have been non-threatening and indeed virtually invisible in public life since independence.
The churches also shamelessly appealed to a broader hostility to Islam, rooted variously in the terror attacks in Nairobi (1998) and Mombasa (2002); the troubled historical relationship with neighbouring Somalia (and the presence in Kenya of many Somali refugees from the conflict there); and the embrace by the Kenyan government of the idea of “war on terror”. More broadly, the public perception of the relationship between Christians and Muslims in Kenya (a country where Muslims make up perhaps a quarter of the population) is being increasingly shaped by rightwing Christian literature, broadcasts and, some argue, money from across the Atlantic.
These ties to north American evangelicalism make it unsurprising that the second plank of the churches’ position on the constitution was opposition to its proposal on abortion. The existing constitution outlaws abortion under all circumstances. The new constitution in principle allows for a slight liberalisation of that stance by permitting abortion in cases where medical practitioners believe the life of the mother to be in danger. From the content of the debate in parliament about this clause, there can be little doubt that this provision will be observed to the letter of the law.
The combative tone of the church leaders on the issues of abortion and the kadhis’ courts came as a shock to some observers. Muthoni Wanyeki, the indefatigable public voice of Kenya’s human-rights groups, used her weekly column in the East African to ask “how institutions once at the fore of the movement for democracy, human rights and the rule of law have sunk so low.” She is far from alone in thinking in such terms. In sharp contrast to the churches’ weak stance on the 2007 elections, Peter Karanja of the NCCK accused the government of fixing the referendum. Paul “Maddo” Kelemba noted in his weekly full-page spread of cartoons and satirical comment in the Standard newspaper: “It would have helped had he said the same thing 28 months ago!”
The power of a negative
The implication is that this is not the time to drop guard and celebrate a new dawn for democracy in Kenya. A truer test will come in a future election as close and which as much at stake as in 2007; if the referendum had been a boxing-match, the referee would have stopped the fight in the first round. Nor in and of itself is the new constitution a guarantee of a new era of politics. Some disillusionment is inevitable, if only because of the unrealistic expectations Kenyans have of the constitution to fix the country’s many political, social and economic ills.
The process of ratification will place great strain on the coalition that campaigned in favour of accepting the coalition. New local authorities, more equitable land policies, an upper house in parliament and restrictions on presidential power could all prove effective. But it is also true that all those measures could prove unequal to the task of reigning in the excesses of the elites, and/or introduce new layers of corruption into the political system.
In any case, a constitution is meaningless without real and measurable changes to the political culture of the country. Until those changes have taken place, Kenya needs its guardians of democracy and human rights to remain vigilant. In the past, none has been as vigilant as the churches. By translating global languages of human rights into locally comprehensible idioms of freedom and using the pulpit to launch courageous critiques of abuses of power, the role of the churches in Kenyan democratisation cannot be overstated. It is that role, as a check on the anti-democratic instincts of politicians, that has been jeopardised.
Timothy Njoya of the Presbyterian Church, although retired as a church leader, was an active campaigner in the referendum campaign as part of the Katiba Sasa (“Constitution Now”) consortium of civil-society groups. When Njoya speaks about constitutional reform, Kenyans listen. He has been a consistent and courageous advocate of reform from the mid-1980s onwards, even in the face of consistent harassment by the state.
On Easter Sunday, 4 April 2010, Njoya spoke to the press of the price the churches will likely pay for their opposition to reform. “If the church campaigns for a “no” vote and fails to garner support among Kenyans, that will be the end of its responsibility for the Kenyan society. It will have caused its own abortion.” That has now come to pass, and as a result Kenyans are all the more vulnerable to the excesses of the powerful.
Get our weekly email