Analysis: Kenya not out of woods despite constitution vote

By James Macharia

NAIROBI (BestGrowthStock) – Kenya’s long-awaited new constitution must now be brought into force by parliament, but the signs are this will be anything but a smooth transition.

The next step for the charter after a resounding “Yes” vote in a referendum last week will be its promulgation by President Mwai Kibaki on August 27, followed by a lengthy process of implementation that could take years.

The law, which Kenyans have wanted for over 20 years, aims to check presidential powers and curb the corruption, political patronage, land-grabbing and tribalism which have plagued east Africa’s biggest economy since independence in 1963.

Foreign investors and governments — including U.S. President Barack Obama, whose father was Kenyan — hailed last week’s vote but Kenya risks losing international goodwill, and funding, if it botches the law’s implementation.

Two-thirds of voters backed the law in a peaceful referendum just two years after claims of vote-rigging in a presidential election ignited violence in which at least 1,300 people were killed.

After years of marred elections, the charter is seen as an important step in avoiding a repeat of that tribal bloodshed, and the peaceful vote encouraged investor sentiment, strengthened the Kenyan shilling and buoyed the stock market.

“As much as there is enthusiasm and momentum surrounding the passing of the constitution, no one, not even in Kenya, is under any illusions — political risk has not been done away with completely,” said Razia Khan of Standard Chartered Bank.

“I think the process to implement the law may be eventful and even emotional,” she said.


The first major battleground will be the sharing of positions in a parliamentary committee that will have the clout to oversee several new laws to give the constitution legs to stand on.

The concern is whether parliamentarians who led the “No” campaign during the divisive referendum will try to block the new law if they are chosen to be on this body, something they feel they are entitled to despite their stance.

“If the appointments are a cause of contention, the process may slow down,” said Samuel Kimeu, director of the Kenyan chapter of anti-graft watchdog Transparency International.

“It’s a delicate balancing act. Those who campaigned against the law have no moral authority to be on the team because they may frustrate its implementation but if left out altogether, this could harm the reconciliation of the ‘Yes’ and ‘No’ camps.”

In the cross-hairs over this choice is Prime Minister Raila Odinga and his Orange Democratic Movement (ODM).

Odinga has to decide whether to leave out from the oversight committee his former ally, Higher Education Minister William Ruto, who rebelled against their ODM and opposed the charter.

Compounding matters for Odinga is the fact that Ruto immediately demanded amendments to the law after it sailed through the vote, and has previously represented ODM on a parliamentary group that midwifed the new charter.

Locking out Ruto and those who opposed the constitution is likely to fracture parliament even further, and the outcast MPs could seek to derail the passing of some of the more than 40 laws required to make the charter stand.

The daggers are already drawn. A newspaper headline on Friday asked “Is this the end of Ruto in ODM?” after party bigwigs demanded he be kept out of the oversight group and kicked out of cabinet along others who spearheaded the “No” campaign.

Ruto opposed the new charter over plans to establish a land commission to look into historic injustices and the MPs backing his cause may want to block laws addressing this thorny issue.


The stakes are high because there is pressure from voters for swift implementation of the law which trims presidential powers and introduces regional grassroots governments with a degree of autonomy and a share of the national budget.

“There is enthusiasm for this law, but not the kind of euphoria we saw in 2002. People are more informed now and they want real change, and they want MPs to lead,” Koki Muli, the executive director of the Electoral Leadership Institute, said.

In December 2002, Kenya became the first country in east Africa where an opposition ousted a long-ruling party through a democratic vote, prompting dancing in the streets. That euphoria was dashed after Kibaki’s presidency failed to deliver the sought-after political reforms, including a promise to usher in a new constitution in 100 days.

Muli said political horse-trading by MPs could cause delays to the new law, but said parliamentarians could end up paying for this in the 2012 elections.

“Politicians pulling in different directions could seriously delay the new law, but they should be warned, Kenyans will use their ballot to punish those who behave badly,” she said.

Analysis: Kenya not out of woods despite constitution vote