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I have spent the
week in Kenya reading the active media debate on constitutional reform
as the country prepares for the referendum on a new constitution that
will take place in three months. Kenya, like Nigeria has suffered from
a long history of corruption and ethno-regional divisions within its
ruling elite. Under President Kenyatta, the Kikuyu elite reigned
supreme. When the first Vice-president Oginga Odinga, a Luo, tried to
organise an opposition party against Kenyatta in 1966, the Kenya
People’s Union (KPU), it was banned immediately and most of its MPs
were detained. It was at that time that Kenyan politics was bifurcated
between the Kikuyu and Luo and their affiliates.

The system of
patronage established by Kenyatta led to the creation of a massive
Kikuyu power elite that owed their position to the increasingly
authoritarian president. Following the death of Kenyatta in August
1978, his long time deputy, Daniel Arap Moi took over and ruled the
country for 24 years during which it became the time for the Kelenjins
from his Rift Valley constituency to enjoy economic favours.

Moi used the
opportunity of an attempted coup in 1982 to wipe out the Kikuyu elite
that had been his earlier allies. He extended despotic rule, human
rights violations and corruption in the country. As he became more and
more unpopular, state violence was organised to ensure his victory in
the 1992, 1997 and 2002 elections following the restoration of
multiparty democracy.

He however resisted
the temptation to change the Constitution to give himself a third term
in office in 2002. He backed the candidacy of Uhuru Kenyatta, son of
the previous president but his candidate was thoroughly beaten by Mwai
Kibaki, also a Kikuyu. In 2005, Kibaki orchestrated a constitutional
revision process aimed largely at enhancing his own powers. The symbol
for those in favour of the Constitution was the banana while those
opposed voted for the orange. The opposition won with 58% of the people
rejecting the Constitution and the Orange Democratic Movement was born.

The 2005 referendum
was the occasion for the revival of the Kikuyu/Luo rivalry and
politicians from both sides incited people with hate speech and not
surprisingly, the level of violence was very high.

The country went to
the polls on 27th December 2007 with Raila Odinga leading the Orange
Democratic Movement and Mwai Kibaki hoping to retain his mandate.
Following early victories by Odinga’s party, a sudden shift occurred
and the Electoral Commission announced Kibaki had won with 46.4% to
Odinga’s 44.1%. Raila and his supporters believed that they had won and
their mandate had been stolen. The result was massive violence leading
to over 1,000 people killed and 600,000 displaced from their homes.

The final outcome
is history – the invention of the power sharing agreement later adopted
by Zimbabwe in which the incumbent president remains in office and the
opposition is offered the post of prime minister as compensation. In
both cases, the international community, which negotiated the
settlements never clarified whether, it was compensation for a stolen
mandate or an inducement to keep the peace. Nonetheless, it was a
turning point for the franchise in Africa because election results were
no longer the sole basis for exercising power.

Since 2008,
negotiations for a new constitution have been on going and the draft is
finally ready. It is strongly supported by both President Kibaki and
Prime Minister Raila Odinga. The issues in the new constitution have
however been obliterated from public debate by the massive entry of
Kenyan Churches into the fray.

Under the
leadership of Rev. Peter Karanga, general-secretary of the National
Council of Churches of Kenya (NCCK), Christian advocates have condemned
the draft constitution for allegedly introducing Sharia law into the
country through the kadhi court system. They argue that this alleged
introduction has elevated Islam over other religions in Kenya.

All the experts I
spoke to told me this is not strictly true. Article 170 (5) of the new
constitution says that the jurisdiction of the Kadhi courts shall be
limited to personal status, marriage, divorce or inheritance in cases
where all parties are Muslims. Indeed, the fact of the matter is that
the Kadhi courts have been in the constitution since independence. They
were part of the Lancaster House compromise under which the coastal
strip governed by the Sultan of Zanzibar became a part of Kenya in 1963.

The second issue
Christian advocates have focused on is that of abortion. They contend
that the draft constitution allows for abortion on demand which is a
recipe for killing unborn babies. What is provided for in Article 26(4)
of the new constitution however is that abortion is not permitted
unless the health or the life of the mother is in danger or there is
need for emergency treatment as may be permitted by law.

Meanwhile, the central issues of presidential powers, electoral
reform, human rights, the land question and delegation of powers to
districts have been relegated to the background as the religious
advocates redefine the debate.