Kenya’s 11,5-million registered voters go to the polls on Monday in the 42-year-old republic’s first referendum. But the economic hub of East Africa is tense ahead of the ballot on a controversial draft Constitution.
“The ongoing and unlawful behaviour on the part of supporters and opponents of the proposed new Constitution has created an increasingly volatile atmosphere that is likely to persist after the referendum,” the director of Kenya’s Human Rights Commission, Wanjiku Miano, predicted.
Police have shot dead at least 10 people during violent protests against the document in the weeks leading up to the plebiscite. Scores have been wounded.
The paramilitary General Services Unit this week patrolled major towns and cities as skirmishes broke out across the country and campaigning approached its zenith.
At the centre of the battle, which has increasingly been waged along ethnic lines, are two rival dynasties. While President Mwai Kibaki (pictured below) supports the draft, his Roads Minister, Raila Odinga, who is also de facto leader of the Liberal Democratic Party (LDP), has urged Kenyans to reject it. The president belongs to Kenya’s largest ethnic group, the Kikuyu, while Odinga is a Luo — the second-largest tribe.
Nobel laureate and Kenyan environmental activist Wangari Maathai blames the current animosity on a memorandum of understanding between Odinga and Kibaki’s National Alliance Party ahead of the 2002 general election.
In exchange for Luo support, Kibaki promised to appoint the LDP leader as prime minister should he defeat Daniel arap Moi, who had ruled Kenya for 24 years. Kibaki was duly victorious. But, the draft Constitution affords the prime minister purely ceremonial powers, which Odinga describes as “untenable”.
The constitutional war has split Kenya’s population of 34-million, comprising 42 ethnic groups. Even Kibaki’s Cabinet is divided.
“The president has lost ground and his rule is fast degenerating into one of tyranny. He no longer pays any regard to the rule of law and presides over an increasingly flawed system of governance,” said National Development Minister Anyang’ Nyong’o, before adding that the run-up to the referendum had been fraught with “impropriety”.
Proponents of the draft have used state funds to campaign, in flagrant contravention of an electoral commission regulation; people have been arrested for buying voter cards in an apparent effort to swing the vote; the state has admitted to mistakes in the voters roll that the “no” group says will prevent thousands of its supporters from casting their ballots; and the security forces have attacked peaceful demonstrators.
Internationally renowned constitutional scholar, Professor Yash Pal Ghai, who recently helped formulate the Iraq Constitution, spent almost four years in Kenya to write a draft that was accepted by delegates from across the country’s social spectrum at a conference last year.
The document watered down the powers of the presidency by giving more executive power to Parliament and the post of prime minister. Kenyans rejoiced, seeing in Ghai’s draft a significant step away from the autocracy that characterised Moi’s tenure.
Shortly afterwards, though, Kibaki-friendly MPs met to amend parts of Ghai’s document. While Ghai’s draft had afforded Parliament greater powers to hold the president to account, the amended document negated this through a clause stating that he could only be impeached if two-thirds of MPs voted against him.
“If one goes by the (amended) draft, it would be impossible to impeach the president. Because, according to this document, the president is permitted to appoint 50% of Parliament. Would these people then vote against their boss? Never! It’s a recipe for dictatorship,” Odinga told the Mail & Guardian.
The Katiba lobby group said adoption of the “mutilated” Constitution would signal the “death” of multiparty democracy in Kenya.
But those in favour of the amended draft point to its “liberalism” as reason enough for acceptance. For the first time in Kenya’s history, women can own land; there are clauses on affirmative action and freedom of information; and it sanctions abortion if a mother’s life is in danger.
Kibaki has staked his future on the outcome of the referendum. A “no” vote will be seen as a rejection of his leadership and thwart his bid for a second term in 2007.
Kibaki’s opponents have accused him of “bribery”. He has allocated land to ethnic groups perceived to be against the draft, received them at State House and given traditional chiefs hefty salary increases. He has branded Kenyans intent on voting “no” pumbavu (stupid) and mavi ya kuku (chicken shit).
Both camps expressed confidence this week that they would “easily” triumph in the November 21 plebiscite.
The latest opinion surveys reflect that the “no” group is favoured to win by a small majority.
A network of seven NGOs this week failed in a legal challenge to prevent the draft Constitution from being enacted on December 12, should the “yes” vote carry the day.
Odinga promised a sustained campaign of protests should the “yes” camp “steal” the vote, which prompted Cabinet minister and key Kibaki ally Chris Murungaru to declare: “If they are real men, let them try. We will show them.”