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How 2005 referendum divided a feeble nation

By Francis Ngige | August 30th 2020 at 11:50:00 GMT +0300

Uhuru Kenyatta, then the leader of opposition, speaks during a rally called to reject the 2005 referendum. [File]

In the run up to the 2005 referendum, signs that Kenya was hurtling down a dangerous path of ethnic divisions were clear.

Campaigns leading to the vote were laced with poisonous rhetoric from the two opposing sides, leaving no doubt that the contest, once over, would leave the country more divided than ever.

Although a constitutional review was among the expectations from the new National Rainbow Coalition (Narc) that beat Kanu in 2002, it later emerged to be a hot political potato few wanted to touch.

As the country marks 10 years since the 2010 Constitution was adopted, Kenyans are looking at the path they took in the quest for the document.

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Prof Gitile Naituli, a political analyst, opines that the 2005 referendum set the country on a very dangerous path. This is because it gave birth to the 2007/08 political violence. “It will remain the most divisive exercise ever. It nearly brought the country to its knees two years later,” Naituli said.

Instead of closing ranks on one key agenda — the constitutional review — political players in the new administration fighting over what was to be changed in the supreme law.

Historic election

The 100 days promised by the Narc government to deliver a new Constitution came and passed. President Mwai Kibaki, who had won the historic election, had a group of allies who later emerged as the real power wielders.

On the other side was the increasingly influential Roads Minister Raila Odinga, who was credited with the Narc victory. 

In what was to play out later in the public arena, the two protagonists who had been joined by fate at the 2002 election started pulling in different directions immediately after the Cabinet was formed.

Raila, who led the campaigns after Kibaki was involved in a road accident months to election, accused his partner of reneging on a pre-election agreement and short-changing his side in the Cabinet appointments.

From there on, it was just a matter of time before their deep rooted suspicion against each other and dishonesty in their respective political camps became public.

The political trajectory of the country started changing once constitutional review became an urgent agenda with players from each side tearing themselves apart.

On Kibaki’s side was Justice and Constitutional Affairs Minister Kiraitu Murungi whose docket was supposed to midwife the process. On the opposite side was Raila leading his troops, and warning that the exercise was taking too long.

As the constitutional review gathered momentum, a National Constitutional Conference was convened at the Bomas of Kenya to fine tune the views of Kenyans.

Conveners of the national dialogue forum managed to come up with a draft Constitution, later referred to as the Bomas Draft which had significantly diluted the powers of the presidency, an institution accused of being an impediment to democracy.

It was opposed by Kibaki and his National Alliance Party of Kenya (NAK), which made other proposals. Raila’s side, boosted by Kanu — the then Official Opposition — saw it as the panacea for all the governance ills that have plagued Kenya.

The NAK side walked out of the constitutional talks at Bomas and proposed a new draft that was to be subjected to a referendum.

This marked the major division among key political players, a division that continued to the 2005 referendum.

Those who opposed the proposed Constitution — later referred to as the (Amos) Wako Draft — argued that it allowed for an overly powerful presidency. They called for the reinstatement of the Bomas Draft that watered down presidential authority.

Kibaki camp

The Kibaki camp countered by saying there were adequate measures in the proposed draft to keep the Executive in check. Raila however refused to budge and emerged as the leader of the group opposing the Wako Draft.

Initially, Parliament was obliged to accept or reject the Bomas Draft in its entirety. However, NAK legislators succeeded in passing the Consensus Act, enabling Parliament to alter the Bomas Draft so as to retain presidential powers.

In the referendum, Kibaki suffered a humiliating defeat that forced him to dissolve the Cabinet and Raila and his group were fired. “This process will forever be a blot in our history since it was something that would have been avoided,” said Naituli of the 2005 referendum.

“There are things that ought to have been right then so as to avoid the adversarial situation that emerged. In such circumstances, it is the citizens who lose.”

He also noted that it was prudent for the country’s leadership to read the mood of Kenyans before carrying out changes with far reaching ramifications.

“As we celebrate 10 years since we promulgated the Constitution, it is very important to look at what happened in 2005. That is why we should call for caution in what is being advocated in the Building Bridges Initiative,” Naituli said.

Lawyer Wahome Gikonyo, was also of the opinion that there are lessons to be learnt from the divisive 2005 referendum: “Changes in the supreme law should be anchored on the aspirations of the people,” Gikonyo said.


Referendum 2005 Referendum Constitution Law Review
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