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.

August 2010

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.[1]

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”.[2]

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.[3] 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,[4] 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.[5] 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

[1] Commission of Inquiry into Post-Election Violence, Report of the Commission of Inquiry into Post-Election Violence [Waki Repor]), 24-28

[2] HRW, Ballots to Bullets: Organized Political Violence and Kenya’s Crisis of Governance, 17

[3] The Guardian, Pressure Grows on Kenya to end Bloodshed, Jan. 2, 2008

[4] New York Times, Kenyans Approve New Constitution, Aug. 5, 2010

[5] Kenya Human Rights Commission, Position on the Proposed Constitution of Kenya