Kenyans Reject Constitution

November 23, 2005

Today voters in Kenya rejected the new constitution (All Africa). For future reference, the "No" campaign was "orange" (like the fruit), while the "Yes" campaign was "banana." For those of you who are a little out of touch with Kenyan political developments, here's a little summary: between independence and 2002, Kenya was ruled by independence leader Jomo Kenyatta (s.1964-1978), then by his successor, Daniel arap Moi (1978-2002). While Kenyatta was conciliatory and a fairly impressive statesman, his successor had largely manuevered to power through the internal politics of party and tribe, and was basically a ruthless murdering bastard (HRW, 1, 2; Amnesty). In the late '80's and mid-90's he was decisively pressured to allow multiparty elections by foreign aid donors; in '2002, after the economy suffered its worst-ever performance, the ruling KANU party lost to a coalition led by Mwai Kibak (Moi had handpicked Uhuru Kenyatta, son of Jomo Kenyatta, to succeed him). According to HRW, the transition was marked by police violence against the victorious opposition.

Since then, the high hopes vested in Pres. Kibak have soured (BBC); the ruling coalition (National Rainbow Coalition, or NARC), has been accused convincingly of looting $1 billion from the country. Moreover, the NARC has implemented an "anti-terrorism" law, probably to offset the fact that the NARC lacks KANU's 40-years of patronage over the Kenya police. However, HRW acknowledges the human rights condition in Kenya has definitely improved.

Since its inception, the NARC has suffered from tension between the two main members, the LDP and the NAK (Head Heeb). That's probably been headed off for now, but it is relevant for future reference: the NAK would like to make make the NARC, in effect, a single party, and the LDP wants definite autonomy (no individual membership in NARC, for instance). Should a split occur, the result would be a hung parliament and presumably a KANU return to power.

The main issue for several years has been the constitution of Kenya, which most Kenyan political officials appear to agree has to be altered or renovated, since it was colonial document. For a good summary of the issues involved, readers can read the Head Heeb (1, 2), or Ory Okolloh (1, 2, 3, 4, 5, 6). I'm going to be quoting liberally from the latter:

1. Current Constitution:
   • Kenyans are represented by elected representatives on the basis of a first past the post system. There are 210 elected MPs and 12 nominated by political parties on the strength of seats won by each party.
   • A simple majority and critical support in the provinces is required to win a presidential election (at least 25% of the votes cast in at least 5 provinces).
   • Parliament is unicameral.
   • All candidates for elctions must be nominated by a political party.
   • Right to vote not constitutionally recognized and protected.
   • Transparent ballot boxes not mandatory.
   • The number of MPs is set at 222.
   • Elections supervised by an “independent” Electoral Commission about by the President.
   • The Attorney-General and Speaker are ex-officio MPs.

   Executive

   • President is both the head of state and government. All public servants serve at the pleasure of the president.
   • Vice President has no defined roles, besides being principal assistant
   • Presidenct can hold office in a political party.
   • The President cannot be impeached. Parliament can pass a vote of no confidence by a majority of all the members but the president does not have to leave office and can dissolve parliament instead.
   • Executive consists of the President, V-P, Ministers and Assistant Ministers.
   • No Prime Minister.
2. Bomas Draft
   • Kenyans would have been represented by elected representatives based on a first past the post electoral system with special seats reserved for women and other groups.
   • A decisive majority is required to be elected president. Over 50% of the votes cast and at least 25% of the votes cast in more than 1/2 the regions.
   • Parliament would have been bicameral.
   • Independent candidates would have been allowed.
   • Right to vote would have been recognized and protected.
   • Transparent ballot boxes would have been mandatory.
   • The number of MPs would have varied from election to election.
   • Election supervised by independent Electoral and Boundaries Commission (3-9 persons)
   • No ex-officio members although there is a speaker in addition to the other members.

   Executive

   • There was to be power sharing between the President (head of state with delineated powers) and the Prime Minister (Head of government).
     
   • Executive authority was to be vested in the President, the Deputy President, the Prime Minister, and Ministers, all of whom, in the performance of their respective functions are required to “work in the harmony for the good of Kenya and the progress of the people of Kenya.”
   • The Deputy President would have defined roles.
   • The President and Deputy President are barred from holding office in a political party.
   • President can be impeached on the motion of 2/3 of the national assembly.
   • Prime Minister is head of government with defined powers.
   • Prime Minister is to assisted by 2 deputy prime ministers and ministers appointed by him/her.
   • President cannot dismiss Prime Minister at will.
   • Key appointments would have required parliamentary approval.
3. Wako/Kilifi Draft
   • Kenyans will be represented by elected representatives on basis of various electoral systems. The president will be elected by a first past the post system, while MPs will be elected on the basis of a mixed member proportional system (whose workings no one seems to be quite certain of as far as I can tell).
   • To be elected president, the candidate will have to get over 50% of the votes cast and at least 25% of the votes cast in more than 1/2 of the districts.
   • Under the mixed member proportional system, special constitutencies will be reserved for women and minorities (see section 116). There will also be affirmative action quotas for women and minorities.
   • In addition to the Speaker and the A-G, unelected ministers (Cabinet will be composed of both elected MPs and unelected folks) will also be ex officio MPs.
   • Parliament will be unicameral.
   • Independent candidates will be allowed (see section 117).
   • Right to vote will be recognized and protected (see section 54).
   • Transparent ballot boxes will be mandatory.
   • The number of MPs will vary from eleection to election.
   • Elections will be supervised by independent Election and Boundaries Commission (see section 109 for details).

   Executive

   • There was to be power sharing between the President (head of state with delineated powers) and the Prime Minister (Head of government).
     
   • Executive authority was to be vested in the President, the Deputy President, the Prime Minister, and Ministers, all of whom, in the performance of their respective functions are required to “work in the harmony for the good of Kenya and the progress of the people of Kenya.”
   • The Deputy President would have defined roles.
   • The President and Deputy President are barred from holding office in a political party.
   • President can be impeached on the motion of 2/3 of the national assembly.
   • Prime Minister is head of government with defined powers.
   • Prime Minister is to assisted by 2 deputy prime ministers and ministers appointed by him/her.
   • President cannot dismiss Prime Minister at will.
   • Key appointments would have required parliamentary approval.

   Executive

   • The President is both the head of state and head of government (no power sharing). Has sole executive authority.
   • The Prime Minister is merely the Chief Minister/first amongst equals.
   • Key appointments will require parliamentary approval.
   • There will be a deputy president with defined roles.
   • President and Deputy President are barred from holding office in a political party.
   • President can be impeached on the motion of over 50% of the members of the national assembly.
   • Prime Minister is assisted by 2 deputy prime ministers and ministers appointed by the president.
   • President can hire and fire the Prime Minister at will.

The defeat of the bananas ["Yes"] means that Kenya will attempt to replace its constitution again in 2007, after elections may—probably will—return the KANU to power. It seems plausible that the orange movement was dominated by KANU faithful, although I can certainly understand if a lot of NARC supporters also wanted to tell the government, "try again." For 38 years KANU had the chance to give Kenya a sovereign constitution, and it didn't. Now the multiparty regime has given it a go.