Kenya's New Constitution Presents Challenges

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KISUMU, Kenya - This pleasant city on the edge of Lake Victoria gives little evidence that it was the site of serious upheaval [2] following Kenya's disputed 2007 presidential election.

Shops along the city's main drag were vandalized, looted and burned, disrupting commerce for months. Across Kenya some 1,200 people were killed in the political/ethnic violence.

Today, few visible signs of this upheaval remain. Shops are freshly painted, bodas (bike taxis) patrol the corners looking for customers, and every few blocks, someone is wearing a bright green T-shirt that proclaims "Yes." It is just days after the Aug. 4 referendum for a new constitution, and the streets are quiet and peaceful.

Nearly 9 million Kenyans went to the polls. Two-thirds of them voted "Yes," and those that voted "No" have accepted the results of the election.

The importance of this outcome should not be taken for granted. The violence that followed the 2007 election was not an aberration, as many international observers thought. Kenya has a history of violence in the run-up and aftermath of elections but in late 2007 and early 2008, the extremity and duration of the violence launched Kenya into international headlines.

The violence abated after the formation of a power-sharing government in late February 2008 and Kenya dropped below the international radar once again.

Meanwhile, that power-sharing government was expending most of its energy bickering and haggling over who was authorized to do what. This political stalemate continued well into 2010, with Kenyans becoming more and more disillusioned with their political leaders.

If anything, some Kenyans complained, the power-sharing government was worse than the previous administration. Now, they said, both political parties were feeding off the state's coffers. The headlines were full of corruption scandals - first in the Ministry of Agriculture, and then in the Ministry of Education.

Many political analysts, both inside and outside Kenya, agreed that the country needed a new constitution. Last year, Stephen Ndegwa of the World Bank told me that Kenya couldn't move forward politically without a new constitution, but he wasn't sure that most Kenyans would support one.

Yet last weekend, just days before Kenyans went to the polls to vote on a new constitution, not only were pollsters predicting a victory for the "Yes" campaign, former political foes President Mwai Kibaki and Prime Minister Raila Odinga held a rally together in Kisumu in support of the constitution.

Kisumu is a stronghold of Luos, Raila Odinga's ethnic group. Kibaki would have been persona non grata in Kisumu in 2008.

Of course, Kibaki and Odinga had their own personal motivations for working together on the "Yes" campaign. Kibaki wants to ensure his political legacy, and Odinga is maneuvering in advance of the 2012 presidential elections.

The shift their collaboration represents among the Kenya population is much more significant. For Kenya to move forward, this new constitution is necessary. It places important limitations on the executive branch - including the possibility of impeachment; it creates a more independent judiciary; it devolves power to local counties; and it creates a Bill of Rights.

However, the new constitution is not sufficient. A critical mass of the population - the same Kenyans who voted "Yes" on Aug. 4 - must be invested in the new political system the constitution calls for. Without this belief, implementation will falter. To implement the constitution, Kenya's parliament will need to pass more than 60 laws. It typically passes six to eight laws per year, according to the executive director of the Kenya Human Rights Commission. Kenyans must remain vigilant, pressuring their MPs to implement the constitution quickly.

The East Africa office of the Society for Independent Development published a short report in late July outlining three potential scenarios for the referendum. Its "Ndoto" or "dream" scenario describes the referendum passing, but the many challenges that Kenya will face in its aftermath.

First, creating new political institutions is expensive. The Ndoto scenario predicts rising tensions between the national government and the newly created county governments over budget allocations.

Second, the new Bill of Rights will prompt a surge in litigation.

Finally, the report projects a busy parliament, with an agenda "dominated by land issues as entrenched interests sought to undermine the reform spirit contained in the new constitution."

And this is the dream scenario. As it makes clear, Kenya has a lot of work to do. But youth compose 70 percent of the population, and they have the most to gain emergence of a political system that encourages political alliances across ethnic groups, that has robust checks against corruption, and that provides equal rights to minorities and women.

The big men who have benefited from Kenya's current political system of political patronage and lack of accountability are quiet now. The margin of victory for the referendum was too large to dispute. But they will not rest in their efforts to subvert the implementation of the new constitution. Kenyans who want a better future for their country cannot rest either.

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