We should look back to know why ‘Yes’ vote matters

By Yash Ghai

The struggles of Kenyans for constitutional reform led in 2000 to a national compact on the objectives of reform and the process for formulating the constitution. All organs of review, except the referendum, have discharged their responsibilities under the Review Act 2008, which embodies the principles of that pact. As we debate the Proposed Constitution and begin the referendum campaign, it is time to remind ourselves of the obligations the Act places upon us. All voters are party to the ‘referendum’.

Voters must conduct the debate and the campaign within the Act, and vote in a way that upholds its substantive and procedural values.

Why the review

Why did we embark on this constitutional odyssey? Principally because of the enormous centralisation of power: First in the central government, and then in the Office (which effectively meant the person) of the President. This personalisation of power signalled the end of democracy, with the development of State House politics and intrigues, and the ethnicisation of politics.

The consequent lack of accountability facilitated corruption on a massive scale, with emerging political families becoming millionaires, many times over in a few years. A primary basis of their wealth was the illegal appropriations of huge tracts of land, depriving many people of their means of livelihood and driving them into poverty.

The culture of impunity for the privileged and the weaknesses of civil society led to gross violations of people’s rights. Cutthroat competition among politicians for the plunder of State led to the militarisation of politics, posing a major threat to communal harmony and national integrity.

The review, responding to this predicament, made the foremost objective the well being of the people, through peace and national unity. The basic needs of all Kenyans were to be met by equitable development and access to national resources.

Next were democracy and the rule of law, with the full participation of the people in public affairs and the protection of their rights. Separation of powers and checks and balances would ensure the accountability of Government. There was to be the recognition of and respect for regional and ethnic diversity as the basis of unity and inclusion of all groups in State institutions.

Particular emphasis was placed on social justice, with affirmative action for women and other marginalised groups. The new constitution was to encourage and facilitate peaceful resolution of national issues through dialogue and consensus.

Procedural values

The membership of organs of review is to be inclusive, reflecting the country’s diversity. The organs, accountable to the people, have to ensure national interest prevails over regional or sectoral interests. All Kenyans have the right to make recommendations to review organs, particularly the Committee of Experts (CoE), which is obliged to ensure the new constitution faithfully reflects people’s wishes.

The Act provides a role for civil society, in building consensus (through the Reference Group), and in providing civic education.

Procedural rules emphasise consensus building. This is a particular responsibility of the CoE, which interacted at length with the people on two occasions, and was best qualified to judge their preferences.

The identification of contentious issues was the sole responsibility of the CoE. The process was not to open issues previously agreed upon. The independence and impartiality of the experts is central to the process.

The code of conduct for the referendum campaign is the same as that for national elections, which emphasises the need for free and fair debate.

These rules are important not only to ensure a good and acceptable constitution, but also to generate habits of rational and honest debate, heal divisions in society, settle differences through discussions and negotiations, and strengthen national unity and national resolve to solve pressing problems peacefully. If the process succeeds in these objectives, it would ensure a favourable environment and political culture in which the new constitution would flourish.

What happened?

In important respects procedural values were not observed. There were many rumours that politicians influenced, even directed, CoE members.

At Naivasha, PSC purported to make many changes, which were unconnected to the contentious issues CoE identified.

The experts respected the requirement of accountability to the people, until it was ambushed by PSC, equally bound by that requirement at Naivasha. The CoE clawed back some PSC deviations from the people’s recommendations, but could not do this in respect of structure and powers of State institutions.

What now?

The people have spoken and we have to trust that the draft comes closer to their wishes than others. But some groups, particularly some churches, politicians and landowners are putting sectional interests above the national. Organs of review are bound by the procedural values and rules. None of these are "contentious issues" within the terms of the Review Act.

The proposals in the draft are consistent with the substantive values of the Review Act. To drag new, mostly single issues, and campaign on their basis rather than the complex and balanced compromise of competing interests goes against the spirit of the Act. It is ironic that a process, which started with such wide consensus, should end with deep divisions.

It is important we consider the text of the Proposed Constitution, and not rely on rumours and innuendos or fear mongering.

The lessons of the 2005 referendum are fresh in our memory. And we must not forget that we have to assess the worth of the draft not against some wonderful, imagined constitution, but against the current constitution. In numerous respects, though perhaps not clearly in regard to the imperial presidency, the Proposed Constitution is a great improvement so far as the objectives of reforms, with which we began our odyssey, are concerned.

—Prof Ghai, a constitutional expert, is a former chairman of Constitution of Kenya Review Commission.