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September-October 2010
Vol. 35, No. 5


Kenya: Citizens approve new constitution

On August 4, Kenyan voters overwhelmingly approved a new constitution with 68 percent voting “yes” and only 32 percent voting “no.” Peace prevailed throughout the country at voting booths, in previously conflict-ridden districts and in the ensuing days after announcement of the results. The vote was met with jubilation in Nairobi and most places in the country, and the day after the vote was declared a holiday to enable people to celebrate. The following article was written by Maryknoll Father Frank Breen.

This ends a long journey for Kenya, which officially began shortly after President Mwai Kibaki took office in December 2002, but in actuality began with calls for a new constitution during the regime of former President Daniel Arap Moi. Kibaki’s administration put forward a proposed constitution in 2005 that was rejected by the Kenyan populace. The large ethnic groups of western Kenya did not think that that constitution put in place enough measures to ensure equitable sharing of power.

Horrific violence in 2007-08 followed the disputed national election. (So much vote-rigging took place on both sides that there was never certainty about who won that election). An initial power-sharing arrangement established the post of prime minister for Raila Odinga, a Luo, Kenya’s third largest ethnic group, just below the Luhya. Kibaki is a Kikuyu, Kenya’s largest ethnic group, and of the same ethnicity as Jomo Kenyatta, Kenya’s first president. Odinga was given certain powers independent of the president, which brought an end to the violence in February 2008, and assuaged the Luo, at least temporarily. However, all recognized the need for a new constitution, which would enshrine a far more equitable sharing of power and authority over central government resources and reduce the almost omnipotent executive powers of the president.

The new constitution first and foremost abrogates many colonial relics from the 1963 constitution that was foisted by Britain and a few Kenyan leaders on the citizenry without their voice or approval. Among these are the draconian Chief’s Act; the enormous executive powers of the president; the lack of checks and balances; total presidential control of the police, attorney general’s office and judiciary system; the prerogative of the president alone to distribute land; and the ability of the provincial administration, which was responsible solely to the executive branch, to disregard the wishes of the people in the provinces. This was a constitution borrowed from the colonial era, and easily lent itself to dictatorial rule and the establishment of a national security state.

The new constitution sets up an implementation process of introducing new institutions, safeguards for citizens – especially a bill of rights -- checks and balances on presidential power, devolution of authority to 40+ counties that will have true power over the use of funds for local development (the provincial system of governance will be completely abolished), and a smaller more efficient Cabinet made up of professionals chosen not from elected members of Parliament. Parliament, however, will vet and approve of all those nominated by the president to be Cabinet ministers, judges, attorney general (whose term will be limited), and to many civil administration posts. The new constitution sets in place a land commission, which will not only deliberate on distribution of land but also will have the authority to reclaim land that was improperly obtained and other large land-holdings that are not being used in order to resettle those without land or to protect essential natural resources, such as the main water towers of Kenya or communal land owned by the pastoral ethnic groups. Lease-hold land owned by foreign companies or individuals will also be open to re-allocation to Kenya citizens, purportedly to distribute land equitably and overcome landlessness and poverty. There will be an open judicial review of any decisions by the land commission. Implementation of Kenya’s land reform will be one of the thornier matters in the new constitution, so explosive is the issue in Kenya.

Another challenging area of implementation will be devolution to the counties. Some counties will be huge, with over a half million people; others, small with fewer than 100,000. Presumably, financial resources will be disbursed on a per capita basis and not a set amount for each county. Even so, some of the counties will have to be divided into smaller units. Leaders of the counties will be elected by the local population, which in theory gives citizens control over their county officials. However, corruption and authoritarianism can still emerge even in devolved government, and the central government will have to put in place institutions to monitor use of funds and manner of using authority in the counties. County governance will begin after the national election of 2012.

As the vote neared, the Catholic bishops, based on their perception that a constitutional right to abortion was embedded in the new constitution, recommended a “no” vote. Supporters of the constitution say that the actual wording is not that far-reaching: abortion will be permitted only when the mother’s health is in danger, as determined by a recognized health professional.

Furthermore, they say, Kenya has the highest rate of abortion in the world, between 400,000 and 500,000 abortions every year, in a country with only one-eighth the population of the United States. The causes of abortion are varied and complex, including laws mandating the permanent expulsion of pregnant girls from secondary schools and of pregnant university women from university dormitories, as well as patriarchy, i.e. the control of women’s fertility and household finances by men. The new constitution, in fact, enshrines provisions that will defend women’s rights and promote women’s progress, which could lead to an actual reduction in abortions.

Kenyans themselves are pleased that they could pass such a momentous and forward-looking constitution. The international community should support and join them in monitoring the implementation process, to ensure that it goes in the direction Kenyans want.

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