Judy Mandelbaum

Judy Mandelbaum
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June 01
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AUGUST 4, 2010 7:33AM

What's at stake in Kenya's constitutional referendum

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Kenya referendum 
Kenyans line up to vote on their new constitution
(Daily Nation


Turnout is heavy so far in Kenya’s long-awaited constitutional referendum. At stake are not only this East African nation’s political structure, but also its entire future development as a multi-ethnic, multi-religious society.


In a vote that President Mwai Kibaki has called “a historic moment” in his country’s history, Kenyans are voting on a number of key political changes. Most notably, the new constitution (which is expected to receive a majority) restricts the powers of the president – an important step after the perceived excesses of President Daniel arap Moi’s dictatorial rule from 1978 to 2002 – and devolves authority to local leaders. There will no longer be a prime minister. The document creates a sixty-member Senate that will supplement the current National Assembly and apply checks and balances to the president’s authority. The president, the senators, and MPs will all have fixed terms, with elections every five years. The constitution also creates forty-seven counties with powerful executive governors. Cabinet ministers will be limited to twenty-two and will have to be drawn from outside the parliament. Moreover, MPs can be recalled if their voters feel they are not performing up to par. This is particularly important in reducing the nation’s systemic corruption.


The constitution also reforms the legal system, and, in a snippet of anachronism befitting the developing world, it actually guarantees "freedom from torture and cruel, inhuman and degrading punishment; ... the right to a fair trial; and the right to an order of habeas corpus."


So far, so good. But the new constitution also contains the seed of divisiveness. For one thing, it establishes a land commission that is authorised “to initiate investigations, on its own initiative or on a complaint, into present or historical land injustices, and recommend appropriate redress.” In other words, it has the power to restore stolen properties to their previous owners, presumably without compensation. Land ownership in this former British colony has been fomenting conflict for generations, particularly in the aptly named Rift Valley, and it could both fuel a political backlash and exacerbate tribal frictions.


Kenya caricature 
(Peter Schrank/The Economist - click to enlarge) 


Another tricky point concerns religion: The constitution includes a clause reinforcing the authority of so-called Kadhi courts alongside Kenya’s regular judicial system: “The jurisdiction of a Kadhis’ court shall be limited to the determination of questions of Muslim law relating to personal status, marriage, divorce or inheritance in proceedings in which all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts.” Alongside the human rights issues involved, many Christians consider these courts - a leftover from British rule - to be discriminatory.


Article 26 contains a controversial “right to life” provision that is so vaguely worded that it can be interpreted at will:

(1) Every person has the right to life.

(2) The life of a person begins at conception.

(3) A person shall not be deprived of life intentionally, except to the extent authorised by this Constitution or other written law.

(4) Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

The prospect of a Kenyan government permitting abortions to save the lives of Kenyan women has proven too much for American evangelicals, who – after tasting blood in their campaign to outlaw homosexuality in Uganda – have gone all out to bestow their own special blessing on the rest of East Africa as well. As Congressman Donald Payne (D-New Jersey) of the Congressional Black Caucus says, "I think that those who are trying to derail it are taking the risk of having the blood of many people in question, by their reckless behavior of trying to defeat the constitution. ... We are neutral on it but we cannot stand idly by when people are trying to abuse the rights of Kenyan people."


The reforms could come at a high price: The Kenyan government fears a new outbreak of violence in connection with the referendum. After the December 30, 2007 election, opposition leader Raila Odinga and his supporters refused to accept the victory of the incumbent Mwai Kibaki, claiming he had rigged the election. The ensuing protests quickly transformed into massive violence, as smoldering ethnic and economic conflicts erupted. Over 1,200 people were killed, thousands were beaten and raped, and some 350,000 ended up in temporary camps. Roughly the same number were forced to flee to relatives for shelter.


The violence shocked most Kenyans and foreign observers, who had long regarded this East African power house as a regional success story and as a model for the rest of the continent. This time, however, Kibaki and Odinga are standing together behind the new constitution. The government has mobilized police and military forces, dispatching 10,000 personnel to the quarrelsome Rift Valley.


Meanwhile, health workers fear the country is thoroughly unprepared for a repeat of the rape epidemic that swept the country in early 2009. "The best we can do is to give pain-killers and make referrals [to a hospital], but this is bad because maybe by the time a victim gets here and we do the referral, the damage is done," one Kenyan health worker told journalists. "We don't have any counsellors or even drugs for post-exposure prophylaxis [preventative antiretroviral treatment given within 72 hours after potential exposure to HIV]."

Of course, it will take a lot more than a revamped constitution to tackle Kenya's vast array of economic, social, religious, and ecological problems. The new document won't resolve tribal conflicts, clean up Nairobi's slums, or have any impact whatsoever on Kenya's forty percent unemployment rate. Nevertheless, most Kenyans appear hopeful that the new constitution can at least provide a stable foundation for the reform process that President Kibaki promised after his troubled election in 2002.

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To paraphrase poet Bruce Smith's "I Pray for No More Reagans:"

I pray for no more Rwandas for Congos.
I pray for no more Mugabes.

I hope the Kenyan people are able to restore justice while protecting lives.

My daughter spent time in Kenya last year. She did not shy away from seeing the "rougher" parts. What she has told me has stayed with me.

Thanks, Judy.
Thanks, Fingerlakes. By the way, my quip about habeas corpus is meant ironically...
Thanks for the analysis.