The Birth of Kenya's Second Republic

This week Kenyans voted overwhelmingly for a new constitution. It was a landslide victory for the ‘Yes' campaign (the Greens), which garnered 67.25 percent (5,954,767) of the vote against the ‘No' campaign's (the Reds) 30.25 percent (2,687,193). The voter turnout was high (71 percent) as Kenyans understood the referendum offered a historic opportunity for the country to remake itself from its battered past, for the nation to reimagine its future, to anchor the ‘second independence' on a more democratic basis. They were voting for the establishment of a ‘Second Republic' based on inclusive citizenship, good governance, devolution of power, and more equitable development.

Despite the overheated rhetoric and grenade attacks that killed six people at a ‘No' rally earlier in the campaign, this was largely a peaceful election and the ‘No' campaign readily accepted defeat,  a remarkable departure from the violent aftermath of the bitterly contested 2007 elections in which 1,300 people were killed and the country was nearly brought to the brink of civil war. This time, chastened by the ghosts of 2007, and anxious for new beginnings, electrified Kenyans seized the moment and voted for change, for the enduring dreams of uhuru.  

The resounding victory of the ‘Greens' was a tribute to the virtues of the draft constitution itself, the power of incumbency by the ‘Green's' who were led by the President and Prime Minister, and the ineptitude and bankruptcy of the ‘Reds'. The latter trotted out former President Moi who only served to reminded voters of the old Kenya of corruption, tribalism, repression, impunity, and stagnation. The ‘Reds' also concentrated on blatant misrepresentations and contrived controversies over abortion (the constitution forbids it except when ‘the life or health of the mother is in danger') and the dangers of Muslim courts (Kadhi courts are not new in the country's legal system). The ‘No' politicians and church leaders seemed to be running a rightwing American campaign; indeed, there were accusations that some were bankrolled by American Christian fundamentalists and anti-Muslim fanatics.

The referendum capped more than three decades of struggle for a new constitutional dispensation, which started in the dark days of the one-party-state and peaked from the 1990s as pressures escalated from an enraged and energized civil society and emboldened if often self-serving opposition politicians itching to get back into the corridors of power.  The movement for constitutional reform gathered momentum after the 1997 elections although it was rocked by Kenya's turbulent politics and shifting coalitions.

In 2001, two competing constitutional review initiatives, one led by a civil society based Ufangamano group and the other by the statutory Constitution of Kenya Review Commission (CKRC), were merged.  But the work of the CKRC was hampered by the intransigence of the Moi dictatorship in what turned out to be its last days. The Commission was unable to produce a draft constitution in time for the 2002 elections, which the ruling KANU nonetheless lost to the opposition National Rainbow Coalition (NARC).

But the NARC government proved fractious and the drive for constitutional reform became embroiled in political partisanship and personal ambitions among the leading politicians who could not agree on the powers of the president, land reform, the role of religious courts, and other contentious issues that had bedeviled Kenya since independence. Rival drafts were produced which proved fatal. The leader of what was then called the Liberal Democratic Party, Mr. Raila Odinga, and his supporters advocated a strong premiership as a means of curtailing the all-powerful presidency.

In the constitutional referendum of November 2005, Odinga's ‘Orange' movement campaigned against President Kibaki's ‘Banana' movement (named after their respective symbols). The voters rejected the constitution by 58.12 percent to 41.88 percent. This led to the demise of the coalition government that set the stage for the fierce electoral battle of 2007 and its violent aftermath, which served as an urgent wakeup call to Kenya's bankrupt political class and its traumatized citizenry to chart a more productive future for their beloved country.

The fratricidal post-election violence and explosive political stalemate was brought to an end by the National Accord and Reconciliation Act of 2008. Under it the position of Prime Minister was created and the new power-sharing government was committed to establishing a new constitution as a top priority. The new arrangements accelerated the erosion of the symbols and substance of the ‘imperial presidency'.  Prodded by an anxious population fearful of a repeat of 2007 in the forthcoming elections of 2012, and an international community impatient with the dangerous shenanigans of the political class, an ambitious draft constitution was negotiated and agreed upon.

The drive for the new constitution was led by the protagonists of the 2007 post-electoral crisis, President Kibaki and Prime Minister Odinga. Their close partnership reprised the Kenyatta-Odinga and Kikuyu-Luo alliance of the decolonization era. In delivering the vote, the President has assured himself a burnished legacy as the ‘Father of the second Republic', while the Prime Minister has a head start to the presidency in 2012.

The proposed new constitution goes a long way in dealing with many of the challenges that have bedeviled Kenya since independence. Reading through the 179 page document three features caught my attention. First, it entrenches a bill of rights in which all the so-called three generations of rights (civil and political, social and economic, and solidarity rights that include development and environmental rights) are recognized. Specific provisions are included to promote gender equality (in which women are to get a third of all leadership positions at national and county levels and in the civil service) and the rights of children, persons with disabilities, the youth, older members of society, and minorities and marginalized groups. Underpinning the conception and implementation of the bill of rights is an inclusive notion of citizenship in which dual citizenship for Kenya's rapidly growing diaspora is explicitly acknowledged.

Second, the new constitution lays out a clear separation of powers between the executive, legislature, and judiciary and their respective limitations. Parliament is expanded to include the National Assembly and the Senate representing the counties. The electorate is given the right of recall. The president is limited to two terms and can be removed on grounds of incapacity or by impeachment. His power to nominate cabinet secretaries, the attorney general, director of public prosecutions, and the chief justice and deputy chief justice is subject to parliamentary approval. As for the judiciary, the Chief Justice is limited to a maximum term of ten years and can also be removed from office under certain conditions. The constitution identifies three types of courts, the superior courts (Supreme Court, the Court of Appeal and High Court), special courts with the status of the High Court established by parliament to hear and determine disputes related to employment and labor relations, the environment and the use and occupation of, and title to, land, and subordinate courts including magistrates courts, kadhi's courts, and Courts Martial.

Third, the constitution entrenches the principles and structures of devolved government. The objectives are spelled out with admirable clarity: ‘to promote democratic and accountable exercise of power; to foster national unity by recognising diversity; to give powers of self-governance to the people and enhance the participation of the people in the exercise of the powers of the State and in making decisions affecting them; to recognise the right of communities to manage their own affairs and to further their development; to protect and promote the interests and rights of minorities and marginalised communities; to promote social and economic development and the provision of proximate, easily accessible services throughout Kenya; to ensure equitable sharing of national and local resources throughout Kenya; to facilitate the decentralisation of State organs, their functions and services, from the capital of Kenya; and to enhance checks and balances and the separation of powers'. There will be 47 county governments each with an executive and an assembly headed by an elected governor and deputy governor who are also subject to removal for violation of the Constitution, abuse of office, criminal acts, or incapacity.

There can be little doubt that this constitution is far superior to the independence constitution. Unlike the latter drawn by the imperialists and negotiated with a handful of nationalist leaders at Lancaster House with hardly any public input, the 2010 constitution is homegrown and has involved a protracted participatory process and if there are any external overseers at all for the new dispensation they are eminent African leaders led by former UN Secretary General Kofi Anan. While both constitutional projects were triggered by mass protests and aspirations for self-determination, development and democracy, they represent different dynamics and historical moments.

The independence constitution reproduced the authoritarian structures and ethos of the colonial state in part because it advanced the centralizing ambitions of KANU, the leading nationalist party, which was then pitted against KADU wedded to regionalism as a means of defending the interests of the smaller ethnic groups, not to mention the European settlers anxious to preserve their colonial privileges. Now the political situation is more fluid, with no hegemonic political party, while the ideological map is simultaneously more plural and much narrower in these post-socialist times, all of which is conducive to competitive politics without systemic options.

During the first two sub-periods of postcolonial Kenya, which I have called the era of authoritarian developmentalism that coincided with the Kenyatta presidency (1963-1978) and the era of SAP (structural adjustment programs) authoritarianism encompassing the Moi presidency, the coupling of authoritarianism and developmentalism became more detrimental to Kenya, especially to the masses in whose name independence had been fought. Indeed, authoritarianism suffocated the developmentalist aspirations of uhuru, as the state became more repressive while its capacity to sustain economic growth and deliver development declined. Kenya's economic growth rate went from 6% in 1973 to 4% in 1990 and 0% in 2000.

By the 1990s it was clear that the Kenyan state was facing a triple crisis of legitimation, accumulation and regulation, which fuelled struggles for the ‘second independence', and what I call democratic developmentalism. As elsewhere in Africa, the miseries of the two lost decades of structural adjustment broadened and deepened the struggles for democracy and development, as the increasingly pauperised middle classes joined the forgotten working and peasant masses against the tottering leviathan, and as reenergised old and new civil society organizations emerged from underground, and opposition parties resurfaced from the political wilderness.

But the euphoria of 2002, when KANU was finally dislodged from power did not last, for the social and structural deformities of the postcolony remained as entrenched as ever, and the incapacity of the political class to pursue a national project of democratic developmentalism became ever more apparent. Although the next five years saw the expansion of both democracy and the economy, the marriage between democracy and development remained unfulfilled. The simmering tensions erupted to a shocked nation and a surprised world following the disputed elections of December 2007 and its violent aftermath.

In national histories, as is sometimes the case in individual lives, moments of crisis can present new opportunities as nations are forced to confront their political and social demons and begin to muster the will to refashion themselves anew, to reinvent themselves as imagined national communities of citizens. One possible organized manifestation in this process of national self-reckoning is constitutional reform.

Constitutions reflect the prevailing and aspirational political culture and values. They embody abstract and concrete expressions of the national imaginary, a register of the national consensus on the dos and don'ts, of collective rights and responsibilities. Constitutional documents and arrangements represent the working institutions and structures of governance, a kind of ‘power map' guiding and governing the allocation of authority and duties among state functionaries as well as relations between the state and civil society.

Clearly, constitutions do not guarantee constitutionalism, but without well-articulated constitutional principles and provisions there can be little prospect for constitutionalism. Many African constitutional scholars believe that the core elements of constitutionalism should include, at a minimum, the recognition and protection of fundamental rights and freedoms, the separation of powers, the rule of law, and the protection and promotion of institutions that support democracy. Like other recent African constitutions, which have sought to shed their authoritarian colonial heritage, the new Kenyan constitution seeks to incorporate all these elements.

The question that has faced countries that have incorporated the second and third generation rights in their constitutions in their conception of fundamental human rights and freedoms, which is often encapsulated in the notion of the right to development, centers on their justiciability, that is, enforceability. In some narrow legalistic circles, rights only exist if they are enforceable. Others caution against excessive reliance on justiciability as the primary means to realize the progressive implementation of social, economic, and solidarity rights, arguing that such rights can best be mainstreamed principally through political pressure on the elected executive and legislative branches of government.

In other words, what is at stake is not simply enforceability but implementability, which requires the creation of effective monitoring agencies or consultative forums. This raises the question of resources, the extent to which the realization of the right to development should be made dependent on resource availability. To some this underscores the inherent practical limits of economic, social, cultural and solidarity rights, while to others it is an argument for inaction. They point out that once these rights are recognized, it is the responsibility of states, individually and collectively through international cooperation, to ensure that the available resources are used effectively to ensure their progressive realization.

African countries differ in their views on the justiciability of economic, social, cultural and solidarity rights. In Ghana and Nigeria, for example, these rights are cast as Directive Principles of State Policies, while in South Africa they are constitutional obligations--the state is expected to respect, protect, and fulfill the right to housing, health, and other elements of economic, social, and cultural rights. The South African Constitutional Court has done much to clarify and mainstream the justiciability of these rights.

The new Kenyan constitution also reflects what has now become common practice in recent African constitution making in the way it frames and seeks to entrench the separation of powers by providing checks and balances and curtailing the powers of the executive. The degree to which this has been achieved in practice continues to vary depending on the clarity and strength of the constitutional provisions, enforcement mechanisms, the relative independence of the judiciary in terms of both relational independence (nature of judicial appointments and conditions of service) and functional independence, and the prevailing political culture and culture of politics. In many countries, it has proven difficult to wean politicians from the clientelist politics of ‘Big Man' sycophancy, especially where ruling parties enjoy large parliamentary majorities.

The rule of law entails abiding by the principles of legality and protection from the arbitrary exercise of power as well as the principle of equality before the law. Critical for constitutionalism are the methods by which the constitutionality of laws is determined. South Africa set up a Constitutional Court that reviews actual violations of existing laws and potential violations of pre-promulgated legislation. In the new Kenyan constitution judicial review ‘for redress of a denial, violation or infringement of, or threat to, a right or fundamental freedom in the Bill of Rights' resides with the High Court.

Also critical has been the question of the process by which constitutional amendments are made. In many of the new African constitutions, great efforts have been made to raise the bar for constitutional amendments to avoid abuses by would-be dictators. Quite well-know are efforts to change terms of office--to extend them beyond the customary two terms by leaders who suddenly convince themselves that they are indispensable. There are other less publicized but equally troubling threats to constitutionalism and the rule of law in many of Africa's new constitutional democracies. The Kenyan constitution provides amendatory procedure through parliament or by popular initiative.

Constitutionalism and democracy, which are not synonymous, need each other for both to thrive. In essence, constitutionalism entails the institutionalization of respect for human worth and dignity. Crucial to forging the synergistic relationship between constitutionalism and democracy is the creation and entrenchment within the constitution of autonomous institutions whose primary purpose is the promotion of democracy. To use the example of South Africa again, six such institutions are listed, namely, the Public Prosecutor, Human Rights Commission, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities, Commission for Gender Equality, Auditor General, and the Electoral Commission.

The Kenyan constitution identifies ten independent commissions specifically charged to ‘(a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.' They are: the National Human Rights and Equality Commission, the National Land Commission, the Independent Electoral and Boundaries Commission, the Parliamentary Service Commission, the Judicial Service Commission, the Commission on Revenue Allocation, the Public Service Commission, the Salaries and Remuneration Commission, the Teachers Service Commission, and the National Police Service Commission.

With the passage of the new constitution Kenya has entered the mainstream of contemporary African constitution making. This in itself is a welcome development for a country that is so vital for peace and stability in the East African region. It is certainly an achievement for its people in their age-old struggles for a constitutional dispensation that advances the long-cherished dreams of uhuru for self-determination, development, and democracy. But drafting and passing a new constitution is only part of the struggle for a more productive future, for creating empowered citizens and progressive governments devoted to fundamental social transformation.

In short, constitutions are not a panacea in the absence of political will: the eternal vigilance of the demos, the commitment of the political class, and the existence of enforcement mechanisms. Both the rulers and ruled, the citizens and the political class, have to believe in the legitimacy of the constitution, in the core values it espouses and represents, and there has to be institutional capacity for constitutional monitoring and implementation. We are all only too aware of African leaders who have brazenly abrogated or subverted well-crafted constitutions.

Having crossed this constitutional Rubicon, Kenya has given itself a fresh start that could rescue it from the debilitating history of political instability, economic stagnation, and social decay. Over the last two decades since the onset of the current wave of democratization, Africa has been awash with constitutional reforms, but the results have not always been edifying. After the celebrations and congratulations from abroad are over, Kenyans must start the strenuous work of turning the new constitution into reality. As several prominent Kenyan public intellectuals warn, the public has to keep a watchful eye on the politicians as the country ‘has experienced too many false starts in the past.' Only when what President Kibaki calls ‘national renewal' ushered by the new constitution begins to take hold, may future historians say the referendum indeed marked the rebirth of the nation, the dawn of Kenya's ‘Second Republic'.

First Written August 7, 2010