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In Search of Transformation:

Kenya’s Constitutional crisis

by  Kepta Ombati and Ndung’u Wainaina

When current Kenyan president Mwai Kibaki came to power in 2003 he promised Kenyans a new constitution within 100 days. The new constitution was seen as essential to prevent a recurrence of the abuses of President Daniel arap Moi's regime. But the process of developing the constitution quickly became mired in political wrangling and intrigue. The crisis came to a head last weekend, when a group of MPs made amendments to a draft constitution, sparking protests in the Kenyan capital Nairobi. The amended draft constitution, which maintains the power of the president, was passed by parliament last Thursday. Kepta Ombati and Ndung’u Wainaina explain what’s behind the current crisis.

Kenya is a bundle of contradictions. It is amazing that the country has managed to maintain relative peace and managed two peaceful but autocratic political regime changes. The country has a dominant economy in the region. However, Kenya has one of the largest inequality gaps between the rich and the poor in the world and is perhaps only third to that of South Africa and Brazil.

Kenya has been an arena for flagrant human rights violations and massive corruption. Neither the human rights violations nor the corruption has been conclusively resolved or punished, creating an environment for impunity. This has often been camouflaged and hidden from the rest of the world by the complicity of western states.

Kenya waged an armed struggle against the colonizer for independence yet escaped the armed conflicts that resulted from either the post-independence leaders turning dictatorial or agents of neo-imperialism staging coups. The absence of such armed conflict has often led to the erroneous conclusion that Kenyans have been content with their government.

Some facts are needed at this stage. Firstly, active resistance against the autocratic regimes in the country since the dawn of independence are self-evident. Secondly, these long struggles that culminated in the reintroduction of multi-party democracy are too inadequate to fast track the country into a situation where the effective rule of law, democratic civic culture and the principle of accountability are dominant. Thirdly, the pre-occupation with pluralist multiparty politics and claims of increased democratic space are a scratch and not sufficient conditions for a true democracy. Fourthly, without radical and comprehensive constitutional, institutional, social and economic transformation the back of autocracy and inequality cannot be broken and no meaningful democratic change can occur.

The current governance and constitutional crisis in Kenya began immediately after independence via the introduction of executive-driven constitutional amendments to the independence constitution. The net effect was destruction of all the foundations of democratic government; the introduction of authoritarianism; the negation of the constitutionally-protected bill of rights; the subversion of the struggle for freedom; the alienation of government from the people; the consolidation of the home guard into the power structure and marginalization of the rest of the Kenyan population and the ethnicization of politics.

The state was consolidated within an autocratic mould while the evolution of the 42 nationalities within the borders of the new state into one nation was undermined; dissent was criminalized; basic freedoms were violated by the state; the people were committed to foreign debts without their consent or input and finally a client-patron system of governance was consolidated.

The National Alliance Rainbow Coalition (NARC) election meant different things to different people. For human rights activists and drivers for struggle for change, NARC was the victorious culmination of a long struggle against tyranny and neo-colonialism. To President Mwai Kibaki and his group, NARC was simply a vehicle to political power controlled and directed by neo-liberal conservatives. NARC is not a coalition but a composite party comprising disparate parties coalescing around individuals and pretending to be a single entity. Secondly, the assemblage presents a contradiction. Though elected on the reform platform, the balance of power on both sides of the imaginary divide is in favour of the conservatives and the turncoats. The champions of reforms today are the anti-reformers of yesteryear while the reformers of past years have disappeared within the conservative ranks and even become anti-reform.

Are the key political players – National Alliance Party of Kenya (NAK), Liberal Democratic Party (LDP) and Kenya African National Union (KANU) – really interested in radical transformation and a democratic new constitution? Whereas NAK is comfortable with the current constitution because it provides the best leverages for consolidation of its power ahead of the next general elections, LDP sees the political value that failure to complete the constitution will bring to it against NAK at the next polls. Nothing may provide a more powerful campaign platform against NAK.

KANU on the other hand would be delighted if the constitution were not delivered giving it a form of retribution for its own sins of failure to deliver one. KANU’s interest is resumption of power, not constitutional reform for KANU has never believed in reforms. The sort of constitution and reforms Kenyans are seeking would send most if not all of the ranking members of NAK, LDP and KANU to Kamiti! The dominant forces in all three have no strong track record in constitutional reform. President Mwai Kibaki was a reluctant reformer since the early 90s.

The known reformers have been rapidly converted from idealists to pragmatists with an eye on power rather than an ideal democratic nation. Idealism has all of a sudden become idle dreaming while pragmatism is exalted. Principles and values are low denomination currency while wile and schemes for power are the definitive elements for excellence as former progressives come to term with the imperatives of “realpolitik”. The consequence has been the importing of narrow political interest into the constitutional review process which has resulted in the bastardization of the process.

There is no unanimity over the cause of the collapse of the constitutional review process. Some of the reasons include; President Kibaki’s failure to honour the memorandum of understanding; Raila Odinga’s rebellion against President Kibaki’s regime; and disagreement among politicians over what have been described as contentious issues. However, this is erroneous and deceptive since the original philosophy of constitution making in Kenya denied politicians the powers of determining the new constitutional order in the country. The people therefore and not politicians should decide what is or is not contentious. The real reasons include: A flawed process; capitulation of the reformers within the government; a gullible media; and weakened and paralyzed civil society. The problem is compounded by the loss of the moral authority by the religious community.

The constitutional reform crisis in Kenya is as a result of the balance of power being in favour of conservatives and anti-reformers rather than simply the war between NAK and LPD. Secondly, the popular opinion is that pushed by political parties and the media, NAK and LDP have disagreed on certain contentious issues. The popular view is not necessarily the correct view. Politicians and the media have a long history of misleading the nation over the reform process in Kenya since the advent of the campaign for constitutional reforms. This is largely due to the fact that politicians are always pursuing short term tactical objectives rather than the long term interests of the nation, while the media is controlled by a small group which is a continuum of the ruling elite rather than allies of the people.

And thirdly, the civil society (religious and secular), which has acted as a powerful catalyst and vanguard of the constitutional reform process, is not only deeply divided but also thoroughly coloured by judgments based on ethnicity and partisan positions in an unprecedented manner. This has compromised their capacity to bring NARC to order.

The failure of the NARC government will deny the African continent a new paradigm for political organization and change. Kenya became a toast of the continent, demonstrating that democratic change was possible through peaceful means. That will now be history, barring the balance of power shifting in favour of reformers in and outside government - or by divine intervention the anti-constitutionalists in and outside government becoming reformers.

Finally, it is increasingly becoming impossible to achieve any fundamental reforms – constitutional, political, economic or social – under the NARC government as it sinks deeper and deeper into the vices of the KANU regime. Even though Kenyans have not entirely written off the Kibaki regime, it is unlikely that it will be long before the nation slowly starts to adjust its sights beyond NARC. The problem is that from our experience, and that of most other African states, there does not appear any strong reason to believe that any government in power will faithfully facilitate the promulgation of a new constitution that has the interest of the people rather than the schemes of politicians for power at the center. So what is the alternative? It is now for sure that no serious democratic reforms are possible without first putting in place a democratic constitution with strong institutions; firm systems of checks and balances and sufficient guarantees against regression.

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