Land, Politics and Religion Dominate Kenya Referendum Debate
By Philip Emase
As Kenyans get ready for their second constitutional referendum in five years, most opinion polls show that the draft law is likely to pass.
A strong “yes” side led by President Mwai Kibaki and Prime Minister Raila Odinga is confident of victory in the face of relentless opposition from a “no” team fronted by Christian churches, immediate former President Daniel arap Moi and cabinet minister William Ruto.
The Christian churches are opposed to the draft constitution over the issues of abortion and the inclusion of Islamic courts, while Moi and Ruto are leading politicians who are opposed to the draft for various reasons.
The last constitutional referendum was held in 2005 and Kenyans rejected the draft that had been presented to them. A presidential election followed in December 2007, pitting President Kibaki against Odinga - then an immensely popular opposition leader.
The 2007 election was closely contested, but electoral irregularities made it impossible to discern the clear winner between Kibaki and Odinga. Both men claimed victory, touching off an unprecedented spate of post election violence in which over 1,300 lives were lost before the two sides agreed to form a unity government.
The power sharing agreement that formed the unity government was brokered by former UN Secretary General Kofi Annan, and the current effort to pass enact a new constitution formed a key plank in the agreement. The unity government began on an uneasy footing but Kibaki and Odinga gradually developed a cordial working relationship that has matured into a shared determination to ensure the achievement of a new constitution.
When the referendum campaigns began earlier this year, Odinga was the undisputed leader of the “Yes” team while Kibaki appeared to lend lukewarm support. A flamboyant personality famed for shrewd political strategy and indefatigable energy on the campaign trail, Odinga launched a zealous campaign that made some critics believe he was in reality laying ground for another presidential run in 2012.
President Kibaki’s fervour showed when Odinga was slowed down by a minor brain surgery in June and was advised by doctors to take a rest from the rigorous campaign. The president surprised many when he shunned his trademark nonchalance and personally took control of the “yes” campaign, even uncharacteristically chiding his predecessor, former President Moi, for “misinforming the public” about the provisions in the new constitution.
If Kenyans pass the new constitution, it is likely to become the defining achievement of the Kibaki presidency. It will probably blur the nightmarish memory of the disputed 2007 presidential election that Kibaki himself - during an interview with The Sunday Nation newspaper - recently described as “a blot on the history” of the country.
The draft law has many radical proposals aimed at trimming the massive powers of the presidency. It is a culmination of 20 years of agitation initially borne out of a struggle to break free from the 24 year iron rule of ex-President Moi. While the draft abolishes the post of prime minister, it redistributes some of the president’s powers to parliament and other to the executive governors of the 47 counties that would be created.
The country’s cabinet will be appointed from outside parliament, and its size will be limited to 22 members. The current cabinet has 41 ministers, all of them appointed from among the members of parliament. The draft also allows voters to recall members of parliament who prove inadequate in their role as representatives of their constituencies.
The most ardent opponents of the draft law have been the Christian churches, which have adopted hard-line stances over abortion and the inclusion of Islamic courts in the draft law.
While the draft outlaws abortion, the churches have issue with a clause in the proposed bill of rights that allows for abortion in situations where a pregnant mother’s life is in danger. Leading clergymen have argued that life begins at conception and therefore any foetal expulsion goes against the natural order of existence.
The other key contention surrounds the retention of the Islamic “Kadhi “courts in the draft law. The courts have existed in Kenya since independence, but the churches feel their continued existence elevates Islam above other religions in a state that considers itself secular.
The “yes” campaign has gone to great lengths to rationalize the retention of the courts, which are only permitted to handle matters of marriage, divorce and inheritance among willing members of Kenya’s minority Muslim community.
The Kadhi Courts existed along the Kenyan coast long before the advent of British colonial rule in the 19th century. Back then, the entire strip of land bordering the Indian Ocean - including Kenya’s main seaport of Mombasa - was part of the Sultanate of Zanzibar.
When the rest of Kenya fell under British rule in the 1890s, the Sultan of Zanzibar authorised the British to administer the strip as a protectorate, rather than as part of its inland colony. One of the conditions was for the British to allow the Kadhi courts to retain their jurisdiction over the Muslim residents of the strip.
The coastal strip became a part of newly independent republic of Kenya in 1963. Founding President Jomo Kenyatta’s new administration reaffirmed the earlier treaty by entrenching the Kadhi courts into the country’s constitution.
What has changed in the draft law is that the jurisdiction of the courts is not explicitly restricted to the coastal strip, meaning they can operate among in all other parts of the country. It is partly this free rein that has irked the Christian churches.
On the political front, the most fervent campaigners against the draft are former President Moi and a group of politicians allied to cabinet minister William Ruto, who leads a dissenting wing of Odinga’s Orange Democratic Movement.
Instructively, the clamour for a new constitution originated in the 1980s with the evolution of secret movements like Pambana and Mwakenya that sought to free the country from Moi’s iron rule. Moi had come to power a seemingly benevolent leader upon his Kenyatta’s death in 1978. It is believed that he changed in 1982, when some members of the country’s air force attempted to depose his government. The attempted putsch was swiftly crushed by loyal forces, but the coup scare transformed the previously benign Moi into a strongman.
The post-1982 Moi regime became dreaded for its excesses. Detentions without trial were common, corruption caused serious inflation and the country’s democratic space shrunk into a one party state. The government appeared preoccupied with its survival when it could have pursued more urgent policies like the much needed land reform.
Land has always been an emotive issue in Kenya, and it has fomented ethnic clashes since independence from Britain in 1963. Even the 2008 post election violence that started as an opposition protest about an irregularly conducted election eventually became a deadly ethnic conflict in which President Kibaki’s dominant Kikuyu tribe was targeted for eviction from parts of the country where other smaller tribes formed the majority.
The current constitution allows the head of state to allocate public land to influential individuals; the families of former Presidents Moi and Kenyatta are both well known to be among Kenya’s largest landowners.
The new draft proposes the formation of a land commission and any land illegally acquired could be repossessed. Already, in 2009, the unity government had started implementing a programme to evict people who had been settled in the Mau Forest complex by the Moi government in the 1980s and 1990s. The first wave of evictions was conducted in November 2009, targeting small scale allotees in the 32,000 hectare forest that forms Kenya’s main water catchment area.
After these initial evictions, Odinga controversially declared that a second wave was imminent, this time targeting “the big fish”. The government-commissioned Ndungu Land Report on irregular land allocations, which was released in 2004, showed that several prominent personalities were set to lose their land, including Moi, several of his family members and close associates.
As the country draws close to the constitution, the security agencies are on a high alert in readiness for the possibility of post referendum violence. There has so far been one incidence of violence, when two grenades exploded at a church-organized “no” rally in Nairobi last June, killing six.
There have been reports of tension in the massive Rift Valley Province, which bore the brunt of the 2008 post election violence. Police Commissioner Matthew Iteere said the police force had already identified potential flashpoints and had deployed 10,000 elite officers to ensure the Rift Valley remains peaceful both during and after the vote.