A MONTH after the end of parliamentary discussions on the substance of a new constitution for Kenya, a revised text — drafted by attorney-general Amos Wako — was released last month. The proposed constitution is, in the opinion of Constitutional Affairs Minister Kiraitu Murungi, “very progressive, indeed one of the best in the world”.
Perhaps, but in view of the rioting that attended parliamentary discussion of the text it is not surprising that important sections of Kenyan society dispute that assessment. Indeed, the extent of opposition raises doubts about whether the draft will even be presented to the electorate for approval before the expiry of the 90-day deadline in mid-November.
The challenge facing Kenyan President Mwai Kibaki and fellow proponents of the bill is considerable. Attempts to convince Kenyans of the merits of the latest draft are severely undermined by the opposition of the Liberal Democratic Party (LDP), a key component of the Kibaki government.
That the administration finds itself so divided is predictable. The coalition between Kibaki’s National Alliance of Kenya and the LDP before elections in 2002 was founded on the understanding that presidential powers would be reduced within 100 days. Thereafter LDP leader Raila Odinga was to assume a newly created prime ministerial post, vested with executive powers.
Kibaki’s subsequent endorsement of a constitutional draft that leaves executive authority in the hands of the president has brought five LDP ministers into open opposition to the leader’s stance, and forged an alliance between the LDP and the main opposition Kenya African National Union (Kanu), led by Uhuru Kenyatta, to campaign against the Wako draft.
So far, Kibaki’s response has been to accommodate dissenting views within his cabinet. However, reports in the local press indicate that dissident ministers have been told that they face dismissal if they continue their opposition to the government line.
Still, while pressure on the LDP ministers to switch allegiance is certainly increasing, it is equally clear that Kibaki will be reluctant to use the threatened sanction.
On the one hand, doing so risks the disintegration of his coalition. On the other, he will be mindful that, having refused to dismiss Transport Minister Chris Murungaru earlier this year following accusations of corruption, sacking opponents of the draft will invite unpleasant assessments of his priorities as leader.
Opposition to the bill is not restricted to concerns over the location of executive power within government. Troublingly, from Kibaki’s perspective, certain provisions of the text have incited the opposition of powerful factions, in particular the religious community.
Church leaders were swift to condemn a provision that potentially opens the way to the legalisation of abortion. Of even greater concern is an innovation that appears only in the latest draft of the document, which provides for the establishment of Christian and Hindu courts to decide on certain family law disputes. Quite what this provision means in practice is unclear, particularly in terms of the body of rules that such courts would apply. However, as a means of securing backing of Christian groups for a constitution that also recognises (existing) Islamic courts, it appears to have backfired. Besides denouncing the inclusion of Islamic courts in the text, church leaders have criticised the creation of Christian courts both on theological grounds and on the basis of mundane fears about the costs associated with a proliferation of jurisdictions.
Whether Christian groups can be convinced that the draft is, on balance, to their advantage, remains to be seen. However, one key obstacle to attaining this objective is the level of confusion among the public on the actual terms of the text. Sadly, some interventions by parliamentarians have served to perpetuate voters’ bewilderment. Kibaki was swift to reject claims by LDP cabinet minister Najib Balala that two versions of the constitutional text were in circulation, one of which had been doctored to remove controversial elements.
But despite urging Kenyans to scrutinise the document before passing judgment, Kibaki himself appeared to feed the confusion when he recently affirmed that certain provincial and district administrators would not lose their jobs after the enactment of the new constitution. On a very narrow interpretation, this is correct. But he did not go on to say, as attorney-general Wako did subsequently, that the draft provides expressly for the elimination of the provincial administration after the lapse of a six-month period during which alternative structures will be established.
The extent of popular confusion over the constitution only increases uncertainty as to the outcome of a referendum on the constitution. Kibaki may be hoping that Kenyans will be willing to assent to a document that they regard as partially flawed, if only to bring to an end a painfully drawn-out process of constitutional review. Yet the possibility remains that the referendum itself will be postponed and further thought given to the substance of the text.
Besides abundant precedent for delays to the process, Kibaki will be deeply reluctant to expose his government to defeat, particularly when the leaders of the campaign against the current draft are the men most likely to challenge him for the presidency in 2007.
