POLITICS-KENYA: Referendum Set to Become Constitutional Battleground

By IPS Correspondents Reprint | | Print |

Joyce Mulama

NAIROBI, Aug 17 2005 (IPS) - The seemingly endless wrangle about Kenya’s proposed constitution has continued in recent days, with non-governmental groups expressing concern over the terms of a referendum on the draft that is scheduled to take place in November.

“The country must debate and agree on what percentage of voters must approve the draft constitution for it to be declared legitimately consented to,” Cyprian Nyamwamu, chief executive officer of the National Convention Executive Council (NCEC), told IPS. The NCEC is an umbrella body for organisations that support constitutional reform.

“What if only 20 percent of the registered voters from two or three provinces turn up to vote, while the rest of the voters boycott the referendum vote? Will the 20 percent determine the wish of Kenyans?” he asked.

Preparations for the referendum follow a bitter dispute over the powers which the new constitution should accord Kenya’s president.

An initial draft of the document reduced the powers of the head of state, transferring much of this authority to the prime minister: a post that had not previously existed in Kenya. However, the final version of the proposed constitution – given parliament’s stamp of approval Jul. 21 – retains a powerful presidency.

Last week, President Mwai Kibaki declared that he would personally lead the campaign for a “yes” vote in the referendum. Ministers and legislators from National Alliance Party of Kenya, a wing of the ruling National Rainbow Coalition (NARC) loyal to the head of state, have already begun lobbying their constituents to vote in favour of the proposed constitution.

However, members of government allied to the Liberal Democratic Party (LDP) said they would work towards a “no” vote. The LDP is led by Roads and Public Works Minister Raila Odinga, who was reportedly promised the post of prime minister by Kibaki ahead of the December 2002 election that brought NARC to power.

Shortly after Kibaki’s announcement the LDP also joined forces with the Kenya African National Union, the country’s official opposition, in a legal bid to block the referendum.

The initial draft of the new constitution, meant to replace that drawn up at independence from Britain in 1963, was based on the findings of the Constitution of Kenya Review Commission. This body was appointed in 2000 to gather the views of Kenyans on what form they wanted their new constitution to take – and to formulate these views in a draft constitution.

One of key discoveries of the commission was that citizens wanted the powers of their executive curtailed – apparently a result of the suffering created by certain actions of Kenya’s two former heads of state: Daniel arap Moi and Jomo Kenyatta.

The National Constitutional Conference (NCC) – which included 629 delegates from government and civil society – began debating the draft presented by the commission in 2003 at a cultural centre called ‘Bomas of Kenya’, located on the outskirts of the capital – Nairobi.

NCC delegates endorsed the draft (dubbed the ‘Bomas draft’) in early 2004. Initially, parliament was obliged to accept or reject this version in its entirety. However, last year legislators passed the Consensus Act, giving parliament the right to amend sections of the draft. This law later used to water down efforts to reduce presidential powers – allowing legislators to amend the Bomas draft to maintain a powerful head of state.

Civil society groups and individual activists have filed several court cases challenging the actions of parliament, and reports Wednesday indicated that Attorney General Amos Wako had issued a directive for these cases to be considered jointly.

This followed calls by the civic groups for the cases to be settled before the November referendum. The NCEC has also started a campaign to press the judiciary into taking a decision on the cases.

“We want the judiciary to tell us why the cases have not been determined up to now. It is at this point that we will know whether the judiciary is independent or is being used by the state as a political tool to ensure the president gets the outcome he wants,” said Nyamwanu.

Violent protests rocked Nairobi, the coastal city of Mombasa and Kisumu in western Kenya ahead of the Jul. 21 vote on the altered draft.

The Constitution of Kenya Review Commission is expected to begin civic education about the referendum after Wako publishes a draft constitution bill laying out the latest version of the draft – something that is expected to take place next week.