Kenya: Will the new constitution lead to a more peaceful country?
A Kenyan citizen with the new Constitution
Thomas Obel Hansen
This article is part of a debate organized by Oxford Transitional Justice Research (OTJR). For PDF documents of the debate and other OTJR essay discussions, please go to www.csls.ox.ac.uk/otjr.php.
Wednesday, 4 August 2010, will indisputably be a date for future generations of Kenyans to remember. Following more than 20 years of debate and several attempts at passing a new constitution, Kenya finally succeeded. A united parliament, with President Mwai Kibaki and Prime Minister Raila Odinga together heading the yes campaign, and an electorate that showed significant support for the new constitution mean that fundamental changes in governance will now occur in Kenya. The newly adopted constitution may prove helpful in changing a discredited political system as well as supporting the creation of a more just and peaceful society. This essay argues that certain promises of the new constitution, such as the curbing of presidential powers, present important steps towards creating a society free of large-scale political violence.
Contrary to mainstream perceptions, political violence in Kenya should not be viewed as a phenomenon exclusively related to the disputed 2007 elections, which claimed the lives of more than 1000 Kenyans and forced many more to flee their homes. Violent clashes between supporters of the various political parties have been a feature of most significant political activity in this country since independence. During Daniel Moi’s rule (1978-2002), the political opposition was subjected to repression, and when Moi allowed the re-establishment of a multi-party system in 1992, outbreaks of violence similar in gravity and nature to the most recent round of electoral violence occurred. On several other occasions, including the 1997 elections, politicians have incited and organized large-scale violence.
In most cases the central cause of this violence has been the struggle between elites for political power, which in Kenya also means access to economic resources. Put simply, gaining the presidency in Kenya has meant that the president and his closest allies secure access to lucrative government contracts, land, bribes, etc., leading to extremely tense political competition. Political leaders have manipulated ethnicity for purposes of mobilizing support and fighting their challengers, culminating in widespread violence committed with impunity. As Human Rights Watch notes, “the political manipulation of ethnicity is almost a tradition in Kenyan politics, along with impunity for those implicated in fomenting political violence”.
A constitution that granted the president broad powers, allowed for a lack of transparency, cultivated a corrupt civil service, and failed to grant the parliament and the judiciary (also struggling with corruption) the powers to effectively review the executive was a significant obstacle to a stable democracy. Because the presidency has been seen as a conduit to self-enrichment and privilege, these flaws of the political system have laid the ground for political violence.
This violence has been exacerbated by the fact that large segments of the Kenyan population suffer from unemployment, lack of access to education and health care, and general poverty, rendering these groups dissatisfied with the political system and more sympathetic to suggestions that their problems are caused by particular politicians belonging to other ethnic groups. Kenya remains a highly unequal country and political leaders leverage this inequality using populist rhetoric to incite their followers into violence against their opponents.
The adoption of a new constitution will not overcome all of these causes of political violence. Although the new constitution deals with questions of inequality (for example by declaring that there must be an equal distribution of land (art. 60) and by requiring parliament to adopt a bill which will put an upper limit on individual land holdings (art. 68)), it is unrealistic to expect that the new constitution on its own will remedy the problems of poverty and inequality. Yet, a number of provisions in this newly adopted constitutional framework address causes of past violence, offering hope that a more peaceful Kenya is possible.
In particular, it is important that the new constitution curbs presidential powers, for example by allowing the legislature to remove the president by impeachment (art. 145), by creating a stronger and more independent judiciary (chapter 10), and by requiring the formation of a new land policy which will end the president’s authority to grant titles (art. 62 and 67). These measures increase transparency and improve the system of checks and balances, but may also make a ‘winner-takes-it-all’ calculus less likely in future elections and help end a culture of impunity for political violence.
It is also important that historical land injustices will be investigated by a National Lan d Commission, which may recommend actions for redress (art. 67). Furthermore, the decentralization of power, which follows most notably from the creation of an upper house with representatives from all regions (art. 98), may give new voice to ethnic groups which have historically been marginalized in the political sphere. In addition, the new constitution provides for a bill of rights, which may lead to a better protection of civil and political as well as social, economic and cultural rights (chapter 4). If implemented in a responsible way, the new constitution may thus address some of the central causes of violent conflict in Kenya.
Why then did Kenya finally succeed in adopting a new constitution which may significantly reduce the likelihood of political violence in the future? Part of the answer lies in the fact that this time most political leaders – with some notable exceptions, including minister of higher education William Ruto and former president Moi – supported the adoption of a new constitutional framework. This support among the political elites must be viewed in the context of how the most recent outbreak of political violence was addressed. Whereas previously the use of violence to achieve political objectives received little response from the outside world, after the 2007 electoral violence, the international community along with Kenyan civil society put heavy pressure on the two parties to the disputed elections to come to a political settlement. Only with this pressure, and the impressive effort of chief mediator Kofi Annan, did the two presidential candidates Kibaki and Odinga agree on the establishment of a so-called broad-based government, with Kibaki as president and Odinga taking the newly created post of prime minister. While political violence ended with this arrangement, international and civil society pressure did not. Perhaps reflecting a global trend in which confronting past atrocities through the use of legal mechanisms has become the norm, Kibaki’s and Odinga’s camps were also pushed to agree to a number of measures intended to address legacies of political violence. The parties agreed to set up a ‘Truth, Justice and Reconciliation Commission’, made promises to prosecute those responsible for the violence, and agreed on the so-called Agenda Item 4, which called for a constitutional reform process. In this way, the political elites in Kenya were forced to commit themselves publicly to adopting a new constitution, in part explaining why most politicians (from Kibaki’s as well as Odinga’s camp) have advocated for the new constitution.
Although voting patterns indicate that many Kenyans followed the recommendations of the political leaders they typically support, this alone does not explain the broad support for a new constitution among the Kenyan population (67 percent voted in favour). This support also appears to have flowed from a perception among many that the political system has so far been unable to deliver, making almost any promise of change seem positive.
While there are many reasons to be optimistic about Kenya’s future following these recent events, it should be noted that certain flaws characterized the constitution campaigning. In particular, elements within the ‘no’ group attempted to misinform the population, for example by claiming that the new constitution would allow the government to arbitrarily deprive individuals of land they legally and legitimately own. Furthermore, some sporadic violence took place during the campaigning, in the worst case claiming the lives of five people in mid June when a bomb exploded during a ‘no’ rally in Nairobi’s Uhuru Park. Such events remind us that the new constitution represents only a first structural step toward implementing much needed reforms. We must continue to scrutinize the actions of the political elites and apply pressure should they fail to pass new legislation required by the constitution or in other ways create obstacles for its promises of change. Nevertheless, we must conclude that Kenya’s yes to a new constitution is also a yes to attempting to prevent political violence in the future.
Thomas Obel Hansen recently completed a PhD program on transitional justice at Aarhus University Law School in Denmark. He has lectured and published on human rights, conflict prevention and transitional justice themes, in particular focusing on East African countries. He currently lives in Nairobi, Kenya, where he works as a consultant.
For more on the Kenyan constitutional debate pre-referendum, African Arguments recommends constitutional scholar Yash Ghai’s earlier essay Decreeing and establishing a constitutional order: challenges facing Kenya
 Commission of Inquiry into Post-Election Violence, Report of the Commission of Inquiry into Post-Election Violence [Waki Repor]), 24-28
 HRW, Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance, 17
 The Guardian, Pressure Grows on Kenya to end Bloodshed, Jan. 2, 2008
 New York Times, Kenyans Approve New Constitution, Aug. 5, 2010
 Kenya Human Rights Commission, Position on the Proposed Constitution of Kenya
Thomas Obel Hansen makes a number of good points about Kenya’s new constitution.Â He is of course correct that the introduction of stronger checks and balances on the power of the president is to be welcomed, and he is surely right that the decentralization of authority has the potential to empower a range of new social and political actors.Â Even the most pessimistic of Kenya-watchers must recognize that the country has taken a step forwards.
However, Hansen’s analysis is also dangerously naÃ¯ve and paints an overly optimistic picture of the prospects for political stability and peace in Kenya.Â Most significantly, his discussion fails to take into account the last fifty years of political practice in Kenya.Â Constitutions, much like commissions of inquiry, are only significant if they are respected and acted upon.Â Yet Kenya’s political leaders have systematically demonstrated that they have little respect for the rule of law.Â Given this, why should we believe that the president will not find a way to simply buy the support of a parliamentary majority for his policies and appointments, thus undermining one of the main mechanisms of accountability included in the new constitutional arrangements?Â And why should we believe that the National Land Commission will not be used for partisan ends, when every process of land redistribution in Kenya’s history has been manipulated to the benefit of those in power?Â Kenya has had numerous inquiries into everything from corruption to ethnic clashes; they have regularly provided evidence of wrongdoing by those in government, but have rarely resulted in prosecutions.Â So while the new constitution is clearly an improvement, continual pressure from international actors and civil society groups, and an organized and disciplined opposition in parliament, is essential if it is to change the way that politics works.
Hansen also says too little about the areas in which the government has failed to make any progress at all.Â Yes we have a new constitution, but ODM and PNU MPs have colluded to prevent colleagues from being censured over corruption scandals, while leaders of all stripes have schemed to try and protect themselves against prosecution for alleged involvement in the violence that followed the 2007 elections.Â The failure of the government to agree a viable mechanism to try those implicated by the Waki Commission that investigated the election violence is damning evidence of the dysfunctionality that lies at the heart of the power-sharing arrangement.Â Perhaps most significantly, there has been little reform of the police or security forces.Â As a result, the public continues to lack any confidence in these vital institutions.Â It is hardly surprising that there seems to have been a marked increase in the flow of guns and weapons, or that violent crime seems to have risen over the last two years.Â None of these trends bodes well for a peaceful election in 2012.
Furthermore, Hansen does not appear to recognize that every silver lining comes with a cloud.Â Yes decentralization of power and the creation of an upper house with representatives from all regions may help to address some of the central causes of violence, but it may also enable local ethnic chauvinists to gain a foothold in power and to expand their support base.Â Similarly, it is clearly a good thing to try and end the culture of impunity and to reduce the ‘winner-takes-it-all’ nature of political competition.Â But we must be alert to the tension between these two goals.Â Precisely because leaders are scared of prosecution, any serious attempt to try those responsible for election violence will increase the stakes of political competition, intensifying winner-takes-all struggles.Â Senior political leaders will be more desperate to secure power than ever before in 2012 precisely because it will be the only way that they can ensure that they will not end up in the dock.Â This does not mean that we should not seek to prosecute people that armed and mobilized militias, but those working with the Kenyan government must recognize that politics is about trade-offs and that diverse goals can rarely be simultaneously achieved.
Finally, it is worth recalling the events that preceded the ‘Kenya crisis’ of 2007-2008.Â In 2005, Kenya held a constitutional referendum.Â The government was defeated by a broad opposition movement which later evolved into the Orange Democratic Movement (ODM).Â Many interpreted Kibaki’s willingness to accept defeat as a sign that Kenya was moving towards democratic consolidation.Â However, Kibaki’s refusal to accept an opposition victory in 2007 and the subsequent social unrest suggest another interpretation: the government accepted defeat in the referendum because it was preserving its resources and energy for when real power was on the line.Â Following the introduction of a new constitution that promises to finally devolve power away from the president it is tempting to once again believe that Kenya is once again on the track to a bright democratic future.Â Let us hope that Hansen is proved right.Â But in the meantime, we must not forget that history repeats itself, first as tragedyâ€¦
Dr Nic Cheeseman
University Lecturer in African Politics, Oxford University
Like Nic Cheeseman, I think the new constitution is an improvement. I welcome the public enthusiasm which ensured its success in the referendum, against a ‘No’ campaign which was partly insincere and partly misinformed. But also like Nic, I find it hard to be quite as confident as Thomas Hansen that the new constitution necessarily marks a new era in Kenyan politics.
Nic has concisely and forcibly set out the lessons from Kenya’s post-colonial history which should make us cautious: there is plenty of room, and plenty of precedent, for clientilist politicking to undermine the potential of bodies like the Land Commission and the Senate. I suggest that we should also bear in mind what the constitution-making process itself revealed about Kenyan politics.
There has been much rhetoric emphasising the role in this of popular consultation. Kibaki has contrasted it with a previous process:
The 1963 Lancaster Constitution, which we are retiring, was the product of negotiations between less than 100 Kenyans and the colonial government. On the contrary, each Kenyan had the opportunity to create, debate the Proposed Constitution 2010 and for those of the voting age, vote for the new Constitution.
Well, up to a point. The former constitution (which, incidentally, had been changed in very major ways from that agreed at Lancaster House) was the product of elite negotiations. But so too were key elements of the new one. The PSC retreat at Naivasha involved even fewer than 100 Kenyans: 27, to be precise. Popular consultations had mostly emphasised the need to reduce presidential power and devolve decisions and resources. In the light of those consultations, the draft that went to Naivasha had a parliamentary system with a prime minister, and it had two layers of devolution â€“ with, crucially, a small number of large regions. The one that came back from Naivasha had a presidential system, no prime minister and a ‘devolution’ which really goes little further than the reaffirmation of the old county council system â€“ a single layer of devolution, with 47 counties.
Why did that happen? Those negotiations were driven by the rivalries and deal-making of politicians, a number of whom explicitly see themselves as representing ethnic constituencies. Some evidently used the process to try and outmanoeuvre one another, rather than to pursue a particular constitutional ideal. So people who went to Naivasha committed to regional governments and to a parliamentary system came back to champion a quite different model; and some who negotiated the draft then rethought their strategy, and went on to denounce it in the ‘no’ campaign. While the popular interest in the referendum campaign was heartening, it was pretty clear that some prominent figures were adopting positions which were based on personal ambition or animosity, or their desire to pose as regional leaders, rather than any commitment to the details of the draft. Some, indeed, seem not to have thought through the implications of those details â€“ witness the uncertainty over the future of the provincial administration, which prominent ‘Yes’ campaigners have insisted will survive, though it has no basis in the new constitution.
Does any of this matter? Kenya does now have a remarkably liberal ‘Bill of Rights’, as well as new constraints on presidential power. But the constitution itself will not transform Kenya â€“ it can only provide opportunities to do so. The way that the constitution was negotiated reminds us that an older style of politics is still alive and well in Kenya. Ethnic politics remain vigorous: witness too the current discussion over the census results, and the first signs of the contests over county governorships.
This is not intended to be a message of doom and gloom. The new constitution is better than the old one; people have gone through a referendum process which in itself affirmed a spirit of democratic participation. Optimism is appropriate. But we may all need a bit of expectation-management. Hopes are high, for the new constitution has been determinedly oversold in the course of the campaign. The rhetoric of Raila and Kibaki in recent days has, if anything, encouraged the popular sense that the ‘Second Republic’ will bring rapid prosperity, as well as greater fairness. It will be very hard to satisfy these expectations. The impact of the proposed devolution at a local level will be limited, and will be slow to appear; the practical implications of the ambitious statements of rights have to be worked out; the relationship between the provincial administration and the new constitution is entirely unclear; the ending of impunity is likely to be delayed, if it comes at all. There is likely to be quite a lot of disappointment in two or three years time; just in time for the next election.
Prof. Justin Willis
Durham University, Dept. of History
I agree with everything you have said about Kenya. In fact,Â the analysis of Dr. Nic and Prof. Justin are correctly consistent with the real situation on the ground. Kenya is indeed a complex country. It is also a viable state where democratic principlesÂ are partially practice or demonstrated. Unfortunately, as it has been mentioned bedore, Kenyans politic is largely run by politicians. Painfully, it is this system that has made it easy for ordinary Kenyans to fall through the crack,Â leaving them to fend for themselves. The mostÂ less fortunate people are living it in hell at the slumland of Nairobi or Nakuru. I have lived in Turkana district myself. While I was there I have seen thousands of Kenyans who have less or no excess to food, electricity, water, roads, or hospitals. Literarily, they lack everything from basic to secondary needs. On the other hand, Kenyan’s politicians are living it happily in Nairobi, Nakuru, Eldoret, or Kisumu. Sometime, you wonder if they really understand what it is that is required of them by the very people who elected them as their leaders. They just don’t understand it: Kenya belongs to all, not politicians. You see, the problem of Africa is inequality, mostly breeds byÂ pride. On contrary, we must understand that all citizens are entitled to receive their share of resources in their country, educated people are not superhumans, all humans are equal regardless of their background: Kibaki life is like any other. Equality is life, we must understand. I believe if we know that we are equal, we will live in peace. In my view: the need for equality is quite urgent that we thought. For example,Â in Kenya, the way police would treat ordinary citizen is totally different to how they would treat an officer. That, is disgraceful. WE NEED EQUALITY. RIGHT NOW!!
YES, THE DIFFICULT TIMES IS THE IMPLEMENTATION WHERE CHANGE OF ATTITUDE BY THE OLD GUARDS REAIN A CHELLENGE. THE COMPOSITION OF AN INFORMED MEMBERS OF PARLIAMENT(NATIONAL ASSEMBLY AND SENATE) AND COUNTY IS KEY TO PEACEFUL KENYAN POPULACE.
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