The Torturous Road to a New Dawn for Kenya: Lessons Learnt
By Peter Kimemia
On 4 August 2010, just over 12 million Kenyans participated in a referendum to decide whether to accept or reject a new draft constitution. An overwhelming majority (about 69%) voted in favour of the ratification of the new laws culminating in a colourful promulgation ceremony that happened at the historic Uhuru (freedom) Park just outside the Nairobi CBD on 27 August. Those who are familiar with Kenyan politics of years gone by would attest to the assertion that the ratification of a new constitution following an exceptionally peaceful voting process was not a mean feat. In any case, the most recent general election prior to the just ended plebiscite had ended in an unprecedented spate of organised violence that left over 1000 people dead and another 600 000 internally displaced. The agitation for and the process of constitutional review in Kenya took at least two decades (perhaps one of the most protracted in the world) and along the way, people were maimed, detained without trial and numerous lives were needlessly lost in the hands of a paranoid, dictatorial rulership of one Daniel arap Moi.
There is a school of thought that believes that Moi genuinely, albeit wrongly, construed the agitation for change as an affront to him as a person and not as an inescapable necessity and reality in a changing world especially following the perestroika in the former USSR and the collapse of the Berlin Wall in 1989, which symbolically marked the end of the cold war era. As a result Moi grudgingly gave in to some farcical alterations in the constitution that merely restored, in 1991, a multi-party system without changing other enabling pieces of legislation. Predictably, opposition politicians were hoodwinked into participating in elections that for all intents and purposes were bound to be a sham due to the playing field being heavily skewed in Moi’s favour. The marginal adjustment to the constitution had of course been preceded by massively bloody skirmishes on 7 July 1990 (popularly known as Saba Saba day) when opposition leaders and supporters attempted to hold a banned rally in the heart of Nairobi to demand change. The Nairobi protests were replicated across the country and the government reacted violently; the aftermath was a trail of destruction, loss of lives and detentions without trial.
In the multiparty election that followed in late 1992, courtesy of a fractious opposition, Moi’s dirty tricks and widespread rigging as well as bribery of voters, the ruling party romped back to power with a paltry 36 percent of the vote – much of which was stolen or coercively obtained from terrified voters in certain regions. The vote was anything but fair and for the first time in Kenya’s history it was preceded by attempts at ethnic cleansing aimed at punishing communities perceived to be pro-opposition. However, the significance of Moi’s victory lay in the implications on the constitutional review process. The status quo served him well as it gave the ruling party a blank check to do as it pleased. The then ruling party, Kenya African National Union (KANU) frequently raided the opposition benches and successfully bribed Members of Parliament to defect and support it. This weakened the agitation for change and in the end, as quite a few of the opposition politicians succumbed to the politics of carrot and stick, the church and civil society formations increasingly took the lead in demanding for change.
However, it was only on the eve of the next elections, five years later in 1997, that opposition politicians largely renewed their loose alliance with the church and civil society organisations in an effort to strengthen the demand for change. Again, through a combination of coercion and outright corruption and rigging, Moi and the ruling party “won” the subsequent elections having hoodwinked the opposition to participate in spite of threats of boycott over the stalled constitution review process. Prior to the 1997 elections, mass protests, fraught with violent confrontations and a bit of International pressure, had “persuaded” Moi to accede to minimal changes. These brought about a deceptive semblance of a levelling playing field for all political parties. The next five years were characterised by continued agitation from civil society for far-reaching constitutional reforms and also a significant amount of mistrust among the forces of change. Civil society largely remained suspicious of politicians, because 1997 was the second time they dropped the ball and succumbed to Moi’s cajoling to participate in a flawed electoral process before overhauling the constitution. The Church and civil society formations felt that opposition politicians were more interested in gaining power than pushing for fundamental changes in governance. On their part, political parties were participating in the elections in the hope that they would trounce Moi and KANU and, then, supposedly embark on a comprehensive review of the constitution. However, their disunity repeatedly made it easy for Moi to rig himself back to power. It was only in late 2002 when Moi was going into retirement that the opposition joined forces and eventually won the elections.
However, the triumphant opposition alliance was short-lived and disagreements over power-sharing soon spilt over into the constitution-making process. The promise to deliver a new constitution within the first 100 days in power was thrown aside as ideological disagreements over the system of governance to adopt took centre-stage. The key parties to the ruling alliance were the National Alliance of Kenya (NAK) and the Liberal Democratic Party (LDP). The latter was a late entrant into opposition politics having only parted ways with Moi months before the 2002 elections after differing over his choice of Mr Uhuru Kenyatta as his successor and KANU’s flag bearer. There were many reactionary forces in an alliance that had promised the electorate a quick conclusion to the constitution-making process. In a divisive referendum in 2005, over a draft that had been a product of much acrimony, a section of the cabinet successfully campaigned against the adoption of the draft. In many ways, the divisions that were sowed in the run-up to that referendum, followed by the firing of the section of the cabinet that had campaigned against the draft constitution as well as an unbridled spate of negative ethnic mobilisation contributed to the bloody mess that was the aftermath of the 2007 elections.
Out of the post-election crisis, though, came an internationally-aided resolution of the conflict, which gave rise to the formation of the Grand Coalition government between the Party of National Unity (PNU) led by President Mwai Kibaki and the Orange Democratic Movement (ODM) led by Prime Minister Raila Odinga. The National Unity government was anchored on a raft of mutually agreed-upon reforms chief among which was the delivery of a new constitution. Kenya chose inclusivity as well as widespread public consultation and participation; the aim of which was to produce a set of laws with as broad acceptance as practically possible. Though acrimonious at times and occasionally threatened by the possibility of collapse, the determination not to fail and the prospects of retreating back to the precipice appear to have provided the much needed impetus to succeed once and for all.
Among the key provisions of the new constitution are a new, more elaborate Bill of Rights, the decision to adopt a purely presidential system rather than the distorted hybrid system that was enabled by the old constitution, devolution of power, dual citizenship, a complete overhaul of the judiciary including the establishment of the Supreme Court, reforms in the security and policing services as well as the creation of strong institutions of democratic governance. As the euphoria associated with the promulgation of the new laws dies down, the hard part—the implementation of the new constitution—has started to gain steam, but the road ahead is set to be bumpy and enormous challenges will have to be overcome if the country is to enjoy the promises of better governance and development contained therein.
Firstly, although Kenya has always had a two tier government (Central and Local Governments) the latter has always been weak and served largely as appendages of the central government. The devolution provided for under the new constitution leads to the abolition of the eight provinces and the creation of 47 counties. These will be led by elected governors and will have some measure of political and economic autonomy. Already politicians are finding new areas of disagreements regarding the degree of such autonomy from the central government. While some interpret it more in terms of greater economic freedom, especially in the prioritisation of a county’s specific development projects and in the usage of devolved funds, others prefer to interpret it more in terms of political autonomy. This is no small matter in the Kenyan context, because talk of political autonomy has always been a facade for more sinister designs associated with parochial politics of exclusion on the basis of ethnicity, which could easily spark needless violence.
There is also the question of the viability of certain counties due to natural resource and human capital constraints. In the short and medium terms, chances are that rural counties, especially those in the peripheral, arid and semi-arid regions, are likely to face real difficulties in this regard. However, a careful utilisation of the equitably shared devolved funds may eventually help such regions to develop, although this has to be accompanied by aggressive and creative ways of engendering internal wealth creation.
Moreover, although it is certainly true that democratic decentralisation has the potential to enhance public participation and faster development at the grassroots, there is always also the real possibility of local political elites aborting such progression through corruption and ill-advised rent-seeking exploits. One way of guarding against the decentralisation of corruption and poor governance is to ensure that county and national oversight institutions are strong and committed to the public participation imperative provided for under the new constitution. This will ensure that decisions at the county level are reflective of the citizen’s governance and developmental aspirations.
Secondly, although arguably, the devolved governments hold better promises of more democratic governance, the envisaged huge bureaucracies and numerous holders of political offices including governors, senators, members of the National Assembly as well as those of the Counties Assemblies will constitute a significant drain on scarce financial resources, which would otherwise be utilised on development projects for the benefit of the communities. The huge recurrent expenditure might turn out to be the Achilles heel for numerous counties. The downside for this is that under such circumstances the autonomy to chart own development agenda is thoroughly compromised.
The electoral reforms under the new constitution have also increased hope for freer and fairer elections and the avoidance of acrimonious disagreements over voting outcomes. A presidential candidate is required to pick a running mate and to only be declared a winner if he garners at least 51 percent of the vote, besides getting 25% of the vote in at least 24 of the 47 Counties. This raises the bar for aspirants, but also provides for a run-off in the event that none of the candidates clinches the threshold in the first round of voting. This would help obviate indeterminate conflicts as well as the possibility of the country being led by a president with doubtful legitimacy owing to inadequate support.
A key lesson learnt in the Kenyan constitution-making experience is that political will is crucial for a people-driven outcome to be achieved. As a negotiated instrument for guiding governance and development, a constitution can only gain acceptance if the process reflects a broad participation by a wide range of stakeholders. This though may not always be the quickest route through which to make a constitution. Moreover, it is practically impossible to come up with a constitution whose every clause will attract support by all. It is nevertheless crucially important to allow for as broad a consensus as possible. More importantly, the Kenyan experience demonstrates that it is possible for less developed countries to devise democratic processes and run free and fair elections efficiently and devoid of unnecessary conflicts. A lot of work still needs to be done on the Kenyan democratic project, but after two decades, a huge hurdle has been cleared and what remains is for individual citizens and groups to remain vigilant and ensure that the constitution is fully implemented and good governance entrenched. For as Thomas Jefferson counselled: the price of liberty is eternal vigilance.
On 4 August 2010, just over 12 million Kenyans participated in a referendum to decide whether to accept or reject a new draft constitution. An overwhelming majority (about 69%) voted in favour of the ratification of the new laws culminating in a colourful promulgation ceremony that happened at the historic Uhuru (freedom) Park just outside the Nairobi CBD on 27 August. Those who are familiar with Kenyan politics of years gone by would attest to the assertion that the ratification of a new constitution following an exceptionally peaceful voting process was not a mean feat. In any case, the most recent general election prior to the just ended plebiscite had ended in an unprecedented spate of organised violence that left over 1000 people dead and another 600 000 internally displaced. The agitation for and the process of constitutional review in Kenya took at least two decades (perhaps one of the most protracted in the world) and along the way, people were maimed, detained without trial and numerous lives were needlessly lost in the hands of a paranoid, dictatorial rulership of one Daniel arap Moi.
There is a school of thought that believes that Moi genuinely, albeit wrongly, construed the agitation for change as an affront to him as a person and not as an inescapable necessity and reality in a changing world especially following the perestroika in the former USSR and the collapse of the Berlin Wall in 1989, which symbolically marked the end of the cold war era. As a result Moi grudgingly gave in to some farcical alterations in the constitution that merely restored, in 1991, a multi-party system without changing other enabling pieces of legislation. Predictably, opposition politicians were hoodwinked into participating in elections that for all intents and purposes were bound to be a sham due to the playing field being heavily skewed in Moi’s favour. The marginal adjustment to the constitution had of course been preceded by massively bloody skirmishes on 7 July 1990 (popularly known as Saba Saba day) when opposition leaders and supporters attempted to hold a banned rally in the heart of Nairobi to demand change. The Nairobi protests were replicated across the country and the government reacted violently; the aftermath was a trail of destruction, loss of lives and detentions without trial.
In the multiparty election that followed in late 1992, courtesy of a fractious opposition, Moi’s dirty tricks and widespread rigging as well as bribery of voters, the ruling party romped back to power with a paltry 36 percent of the vote – much of which was stolen or coercively obtained from terrified voters in certain regions. The vote was anything but fair and for the first time in Kenya’s history it was preceded by attempts at ethnic cleansing aimed at punishing communities perceived to be pro-opposition. However, the significance of Moi’s victory lay in the implications on the constitutional review process. The status quo served him well as it gave the ruling party a blank check to do as it pleased. The then ruling party, Kenya African National Union (KANU) frequently raided the opposition benches and successfully bribed Members of Parliament to defect and support it. This weakened the agitation for change and in the end, as quite a few of the opposition politicians succumbed to the politics of carrot and stick, the church and civil society formations increasingly took the lead in demanding for change.
However, it was only on the eve of the next elections, five years later in 1997, that opposition politicians largely renewed their loose alliance with the church and civil society organisations in an effort to strengthen the demand for change. Again, through a combination of coercion and outright corruption and rigging, Moi and the ruling party “won” the subsequent elections having hoodwinked the opposition to participate in spite of threats of boycott over the stalled constitution review process. Prior to the 1997 elections, mass protests, fraught with violent confrontations and a bit of International pressure, had “persuaded” Moi to accede to minimal changes. These brought about a deceptive semblance of a levelling playing field for all political parties. The next five years were characterised by continued agitation from civil society for far-reaching constitutional reforms and also a significant amount of mistrust among the forces of change. Civil society largely remained suspicious of politicians, because 1997 was the second time they dropped the ball and succumbed to Moi’s cajoling to participate in a flawed electoral process before overhauling the constitution. The Church and civil society formations felt that opposition politicians were more interested in gaining power than pushing for fundamental changes in governance. On their part, political parties were participating in the elections in the hope that they would trounce Moi and KANU and, then, supposedly embark on a comprehensive review of the constitution. However, their disunity repeatedly made it easy for Moi to rig himself back to power. It was only in late 2002 when Moi was going into retirement that the opposition joined forces and eventually won the elections.
However, the triumphant opposition alliance was short-lived and disagreements over power-sharing soon spilt over into the constitution-making process. The promise to deliver a new constitution within the first 100 days in power was thrown aside as ideological disagreements over the system of governance to adopt took centre-stage. The key parties to the ruling alliance were the National Alliance of Kenya (NAK) and the Liberal Democratic Party (LDP). The latter was a late entrant into opposition politics having only parted ways with Moi months before the 2002 elections after differing over his choice of Mr Uhuru Kenyatta as his successor and KANU’s flag bearer. There were many reactionary forces in an alliance that had promised the electorate a quick conclusion to the constitution-making process. In a divisive referendum in 2005, over a draft that had been a product of much acrimony, a section of the cabinet successfully campaigned against the adoption of the draft. In many ways, the divisions that were sowed in the run-up to that referendum, followed by the firing of the section of the cabinet that had campaigned against the draft constitution as well as an unbridled spate of negative ethnic mobilisation contributed to the bloody mess that was the aftermath of the 2007 elections.
Out of the post-election crisis, though, came an internationally-aided resolution of the conflict, which gave rise to the formation of the Grand Coalition government between the Party of National Unity (PNU) led by President Mwai Kibaki and the Orange Democratic Movement (ODM) led by Prime Minister Raila Odinga. The National Unity government was anchored on a raft of mutually agreed-upon reforms chief among which was the delivery of a new constitution. Kenya chose inclusivity as well as widespread public consultation and participation; the aim of which was to produce a set of laws with as broad acceptance as practically possible. Though acrimonious at times and occasionally threatened by the possibility of collapse, the determination not to fail and the prospects of retreating back to the precipice appear to have provided the much needed impetus to succeed once and for all.
Among the key provisions of the new constitution are a new, more elaborate Bill of Rights, the decision to adopt a purely presidential system rather than the distorted hybrid system that was enabled by the old constitution, devolution of power, dual citizenship, a complete overhaul of the judiciary including the establishment of the Supreme Court, reforms in the security and policing services as well as the creation of strong institutions of democratic governance. As the euphoria associated with the promulgation of the new laws dies down, the hard part—the implementation of the new constitution—has started to gain steam, but the road ahead is set to be bumpy and enormous challenges will have to be overcome if the country is to enjoy the promises of better governance and development contained therein.
Firstly, although Kenya has always had a two tier government (Central and Local Governments) the latter has always been weak and served largely as appendages of the central government. The devolution provided for under the new constitution leads to the abolition of the eight provinces and the creation of 47 counties. These will be led by elected governors and will have some measure of political and economic autonomy. Already politicians are finding new areas of disagreements regarding the degree of such autonomy from the central government. While some interpret it more in terms of greater economic freedom, especially in the prioritisation of a county’s specific development projects and in the usage of devolved funds, others prefer to interpret it more in terms of political autonomy. This is no small matter in the Kenyan context, because talk of political autonomy has always been a facade for more sinister designs associated with parochial politics of exclusion on the basis of ethnicity, which could easily spark needless violence.
There is also the question of the viability of certain counties due to natural resource and human capital constraints. In the short and medium terms, chances are that rural counties, especially those in the peripheral, arid and semi-arid regions, are likely to face real difficulties in this regard. However, a careful utilisation of the equitably shared devolved funds may eventually help such regions to develop, although this has to be accompanied by aggressive and creative ways of engendering internal wealth creation.
Moreover, although it is certainly true that democratic decentralisation has the potential to enhance public participation and faster development at the grassroots, there is always also the real possibility of local political elites aborting such progression through corruption and ill-advised rent-seeking exploits. One way of guarding against the decentralisation of corruption and poor governance is to ensure that county and national oversight institutions are strong and committed to the public participation imperative provided for under the new constitution. This will ensure that decisions at the county level are reflective of the citizen’s governance and developmental aspirations.
Secondly, although arguably, the devolved governments hold better promises of more democratic governance, the envisaged huge bureaucracies and numerous holders of political offices including governors, senators, members of the National Assembly as well as those of the Counties Assemblies will constitute a significant drain on scarce financial resources, which would otherwise be utilised on development projects for the benefit of the communities. The huge recurrent expenditure might turn out to be the Achilles heel for numerous counties. The downside for this is that under such circumstances the autonomy to chart own development agenda is thoroughly compromised.
The electoral reforms under the new constitution have also increased hope for freer and fairer elections and the avoidance of acrimonious disagreements over voting outcomes. A presidential candidate is required to pick a running mate and to only be declared a winner if he garners at least 51 percent of the vote, besides getting 25% of the vote in at least 24 of the 47 Counties. This raises the bar for aspirants, but also provides for a run-off in the event that none of the candidates clinches the threshold in the first round of voting. This would help obviate indeterminate conflicts as well as the possibility of the country being led by a president with doubtful legitimacy owing to inadequate support.
A key lesson learnt in the Kenyan constitution-making experience is that political will is crucial for a people-driven outcome to be achieved. As a negotiated instrument for guiding governance and development, a constitution can only gain acceptance if the process reflects a broad participation by a wide range of stakeholders. This though may not always be the quickest route through which to make a constitution. Moreover, it is practically impossible to come up with a constitution whose every clause will attract support by all. It is nevertheless crucially important to allow for as broad a consensus as possible. More importantly, the Kenyan experience demonstrates that it is possible for less developed countries to devise democratic processes and run free and fair elections efficiently and devoid of unnecessary conflicts. A lot of work still needs to be done on the Kenyan democratic project, but after two decades, a huge hurdle has been cleared and what remains is for individual citizens and groups to remain vigilant and ensure that the constitution is fully implemented and good governance entrenched. For as Thomas Jefferson counselled: the price of liberty is eternal vigilance.