The Battle for the Basic Law

Africa Confidential

Campaigning for next month’s constitutional referendum is a mixture of ideology, religion and personal ambition – and now the thugs have moved in

The main open disagreements in the lead up to Kenya’s constitutional referendum on 4 August are about abortion, Muslim kadhi courts and land. The battle between the green Yeses and the red Noes is heating up, since William Ruto, the Orange Democratic Movement (ODM) Minister of Higher Education, hitched on to the coat-tails of Christian clerics and his own Rift Valley majimboists to block the Yes campaign. Majimboism is a type of super-federalism that many link to the state-orchestrated ethnic clashes under Daniel arap Moi’s Presidency in the 1990s. At the same time, his party leader, Prime Minister Raila Odinga, has declared himself a Yes vote with President Mwai Kibaki, as part of Odinga’s relentless pursuit of the presidency in 2012. The issues and the political manoeuvres are enmeshed.

The main issues had seemed to have been settled earlier, when a final draft constitution was completed after months of serious discussions in the Committee of Experts (COE: Ruto calls it the ‘Committee of Errors’), a Parliamentary Select Committee, and Parliament itself. The draft to be presented in the referendum offers a single executive under a president hemmed in by checks and balances; the ODM had formerly wanted a dual executive with a strong Prime Minister. The draft also offers devolution of power at a single level, to 47 counties, scotching the idea of regional governments as formerly advocated by the ODM, particularly its supporters in the Rift Valley and among smaller ethnic groups elsewhere.

Some say that Odinga, now front-runner for the presidency in 2012, changed his mind on these issues because he has no more desire than previous presidents to be hemmed in by a strong prime minister and regional governments. The proposed constitution also includes a revamped and more independent judiciary, a strong bill of rights, increased provisions for equality for women, a ceiling of 20 ministers to be appointed from outside Parliament, a president who will no longer be a member of Parliament and who can be impeached, a Senate that will mainly be responsible for dealing with the counties, provisions for fixed election dates not called by the president, a requirement for winners to have more inclusive majorities, and dual citizenship provisions.

However, issues once seen as negotiable or peripheral have mysteriously taken centre stage in the battle for or against the draft constitution. These include sections or clauses on the right to life and abortion, on kadhi courts and the judiciary, and on land. The green Yes faction led by Kibaki and Odinga still has a 57% lead among registered electors, according to a late May poll by Nairobi research firm Synovate. The red No team is fighting back fiercely, spearheaded by Ruto (who is determined to stop Odinga becoming president) and by leaders from 36 churches, including Peter Karanja Mwangi of the National Council of Churches of Kenya (NCCK), Cardinal John Njue and evangelicals such as Wilfred Lai, Mark Kariuki and Peter Sila Kiio.

The strange No alliance includes ex-President Daniel arap Moi and some of those he once detained, such as Koigi wa Wamwere, plus defectors from the Yes campaign. Campaigning is not supposed to start until July but reds and greens are already holding rallies all over the country.

The fury about what seem secondary issues looks like a warm-up for the 2012 election. If the 2010 constitutional referendum were defeated, as the one in 2005 was, it will at best postpone decisions on major issues and at worst bring another violent election in 2012.

The churches have formidable nationwide networks. Ruto and his allies exploit them, emphasising that some clauses would allow abortion under limited circumstances, while others would continue the recognition in the constitution of the kadhi courts, which have existed since before Independence. They also condemn some clauses on land, including one establishing a new National Land Commission (NLC).

On abortion, a ‘right to life’ clause in an early draft in November 2009 included the words ‘every person has a right to life and shall not be arbitrarily deprived of life’. Following pressure from church and women’s groups, the current draft adds that ‘the life of a person begins at conception’ and that ‘abortion is not permitted unless in the opinion of a trained health professional there is a need for emergency treatment or the life or health of the mother is in danger or if permitted by any other written law’.

Furious clerics urge the drafters to outlaw abortion entirely. Some say these activists are funded by evangelicals from the United States, naming in particular Jordan Sekulow of Pat Robertson’s American Centre for Law and Justice in Washington DC, who says he wants to see abortion outlawed completely and that he is in touch with a Kenyan televangelist, Bishop Mark Kariuki. Liberal churchmen such as Timothy Njoya, a retired minister and human rights defender, criticise their fellow clerics who oppose reform.

Christian resistance seems to getting tougher. On 21 June, the NCCK’s Peter Karanja said he would not accept an invitation to discussions with the government unless it agreed to postpone the referendum and amend the draft constitution – which would require a two-thirds majority in Parliament and is highly improbable. The churchmen’s obstruction puzzles many mild-mannered churchgoers but the recent Synovate poll found that, of the 43% who said they would vote No, 55% said it was because of the clause on abortion.

Churchmen also object to the incorporation into the section on the judiciary of clauses about kadhi courts. These have jurisdiction only in matters ‘limited to the determination of questions of Muslim law relating to personal status, marriage, divorce, or inheritance proceedings in which all the parties profess to the Muslim Religion’. This wording was part of a deal in 1963 between Jomo Kenyatta, Kenya’s first President, and the then Sultan of Zanzibar, by which Zanzibar transferred a coastal strip to Kenya and gave it access to the sea. The Christian clerics say they are not against the kadhi courts as such, providing they are not incorporated into the constitution or funded by the state. Doing so, they say, privileges one religion over another.

During the constitutional debate in 2004, 26 Christian leaders brought a case against the then draft constitution for the same reasons. It languished in the courts until 24 May, when three senior judges, Joseph Nyamu, Mathew Anyara Emukule and Roselyne Wendoh sitting as a constitutional court, ruled in favour of the clerics and against acknowledging the kadhi courts in the draft constitution. They said it would violate Kenya’s separation of state and religion, and that extending the courts’ jurisdiction beyond the ten-mile coastal strip was unconstitutional. Attorney General Amos Wako says he will challenge their decision.

As for Ruto’s attacks on the clauses about abortion and the Muslim courts, he was himself among the MPs who approved these clauses at numerous meetings. Now he is looking for new allies in the churches and is also claiming that the draft would open the door to homosexual marriage.

The government is unlikely to yield to his arguments over the kadhi courts, not least to avoid antagonising Muslims. Yet the Synovate poll (on 22-28 May) seemed to show that the Yes vote is weak in Ruto’s Rift Valley area and even weaker in the Eastern province, where the Catholic Church is strong; Eastern’s favourite son, Kalonzo Musyoka, supports the draft, but weakly. Yet both Synovate’s and other more recent opinion polls show the Yes voters still in the lead overall. Some 37% of No voters said they would vote against the draft constitution because of the clauses on the kadhi courts.

The draft’s section on land upsets many voters, particularly the clauses establishing the NLC, which would take power to manage public land away from the president and county councils, and increase government taxation powers. Until now, the allocation and titling of land has been a corrupt bureaucratic nightmare. Past presidents have dished out land as if it were their own; county councils, in concert with sleazy local land boards connected to politicians, have made the titling, selling and arbitration of land disputes difficult and politically poisonous. Many Kenyans welcome the proposed oversight powers of the NLC; others, having benefitted from past irregularities, worry about losing what they have illegally acquired.

The draft constitution would give the NLC power to advise the government on registration and titling, to look into historical injustices, to make recommendations on the registration of titles and to advise government about a national land policy, among other matters. There are objections to clauses allowing the government to limit minimum and maximum holdings of private land and to cut the term of leasehold titles from 999 to 99 years.

Ruto tells his supporters that their land could be seized. Some ministers in the Rift Valley say this is untrue; they include Sally Kosgei, Henry Kosgey and William Ntimama. Ex-President Arap Moi, who grabbed public land for himself and his cronies when he was in power, has lined up with the No vote. Ruto, once his friend, then his enemy, finds himself agreeing with Moi over the land clauses and pretty much everything else in the draft constitution. Although Moi is one of the most prominent opponents of the draft, he will not publicly back Ruto’s campaign which many see as highly divisive and sectional. Ruto’s detractors accuse him of misrepresenting the contents of the draft to people in the countryside. More than anything else, Ruto’s campaign seems to be informed by his antipathy to his former ODM allly, Odinga.

It has also been claimed by the No camp that draft clauses referring to land held by communities on the basis of ‘ethnicity’ or ‘ancestral occupation’ might be used to displace present-day landholders. Yet the draft specifies that everyone ‘has the right to enter, remain in and reside anywhere in Kenya and to own property’. Clearly, some No politicians deliberately distort the clauses on land. Assistant Roads Minister Wilfred Machage, with MPs Fred Kapondi and Joshua Kutuny, and Christine Nyagitha Miller (wife of Kenya’s corrupt former Chief Justice, Cecil Miller) were recently arrested for incitement to violence and released on bail. They were reported to the hitherto dormant National Cohesion & Integration Commission and are charged with hate speech (which can bring a heavy fine and imprisonment) and with distributing leaflets designed to promote violence and evictions against Kikuyu, Luo, Luhya and other ‘non-indigenous groups’ in the Rift Valley and Nairobi, claiming they should move out. This is a reminder of the 2007 post-election violence and is particularly dangerous, since so few people know or understand the draft constitution. Synovate found that 32% of those intending to vote No cite its clauses on land as their reason.

On several quite separate issues, the No campaign has drawn in strange bedfellows. One MP, Koigi wa Wamwere, opposes clauses devolving limited authority to 47 counties and the replacement of provincial commissioners by governors elected from the counties. He says that will institutionalise ‘negative ethnicity’, incite the eviction of minorities and destroy Kenya as a nation. Yet Ruto and many of his No allies say the draft does not decentralise enough and accuse Odinga of having sold out those voters in the Rift Valled who helped bring him and the ODM to power.

Others, including some ex-detainees such as Njeru Kathangu and Wanyiri Kihoro, claim that the draft, far from diminishing the president’s powers, would create a ‘super imperial president with absolute and draconian power’. They note that the president would still be commander-in-chief, retain unchecked power over internal security matters, chair the cabinet and direct the functions of ministries, and they say that is too much power.

Another group of hidden Noes, known as ‘watermelons’ because they masquerade as green Yeses on the outside while being red Noes inside, is said to consist of the old guard of the governing Party of National Unity (AC Vol 52 No 12). They think there should be fewer checks on the president. Many with large landholdings all over the country fear that any sort of devolution could usher in the worst aspects of majimboism, leading to the ‘Balkanisation’ of Kenya. They support Kibaki and pretend they are Yeses but are in fact closet Noes, partly because they do not want Odinga as their next president.

The Yeses are striving to drum up support in areas where it may be fading, including in Ukambani, the Rift Valley and Central Province. Yes might win with a simple majority but the experts think that a new constitution needs 60% support if it is to claim the confidence of the nation.

Several interest groups feel threatened by the changes a new constitution would bring. Part of the problem was the speed with which Parliament passed the draft. In spite of objections – at one stage there were over 150 amendments tabled – the pressure to meet the publication deadline forced an uneasy consensus among politicians and left many dissatisfied.

Critics blame this on external pressure, from Western creditors and ex-United Nations Secretary General Kofi Annan’s team to the National Accord. Under the terms of the 2008 National Accord, the four main agendas – the draft constitution is part of Agenda 4 – should have been implemented before the start of a new election cycle to prevent a repeat of 2007.

Opponents of the draft went underground after Kibaki instructed all ministers at a May cabinet meeting to support the draft or face the consequences. – all except Ruto who controls the Kalenjin vote and was seen as too important to be sacked. Some see a link between the No camp and the Kikuyu-Kalenjin-Kamba ethnic alliance crafted by Uhuru Kenyatta, Ruto and Vice-President Musyoka. While Kenyatta and Musyoka are constrained by their allegiance to Kibaki, Ruto claims many of his supporters in the No campaign are yet to go public.

The deepest ambivalence towards the draft constitution is to be found in the Mount Kenya region, Kenyatta’s Kikuyu stronghold. The fact that the most prominent objectors within the Christian leadership are themselves from that region seems to suggest a link between the Mt. Kenya leadership and Christian leaders, many of whom endorsed Kibaki, a Kikuyu, in his 2007 re-election bid.

For now, the No campaign is on the back foot. All of the politicians accused of ‘hate speech’ have been opponents of the constitution; among them are three of Ruto’s lieutenants, all of whom face criminal charges. Another 20 cases of hate speech are now under investigation.

The No camp cries foul, accusing the government of targeting it and curtailing its campaigns. A season of political correctness looms but that will do nothing to dampen opposition to the constitution. The No campaign believe they have the wind in their sails and will be campaigning hard until the vote on 4 August – which shows every sign of being extremely close-run.

Action on behalf of justice is a constitutive dimension of the preaching of the gospel.
Justice in the World – 1971 Synod of Bishops