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Kenya's Proposed Government Faces Challenges in Overhauling Constitution


High on the list of tasks for Kenya's proposed power-sharing government will be an overhaul of the country's constitution, viewed by many as an outdated document that has contributed to political instability. Several failed attempts at reform demonstrate the difficulty of the task, but there is hope that the country's traumatic post-election experience can provide the necessary political will this time around. Derek Kilner reports from Nairobi.

At the center of the criticism of Kenya's current constitution is what has been dubbed the "imperial presidency." The president serves as commander-in-chief of the military, and can dissolve parliament, appoint judges, cabinet ministers, electoral commissioners, and other officials with little oversight. The president also has considerable leeway in directing government resources to politically sympathetic parts of the country.

Many Kenyans have long seen the constitution, which was adopted at the time of independence in 1963, as a relic of the colonial period. And there has been considerable consensus on the need for reform, particularly since the introduction of multiparty politics in 1991.

But the political elite has repeatedly resisted efforts for significant change.

The most recent push came following elections in 2002, when President Mwai Kibaki, with the support of current opposition leader Raila Odinga, won the presidency on a platform that included constitutional reform. A broad review effort, consulting civil society and religious groups, produced a draft constitution calling for a much-strengthened parliament, political decentralization, and changes in the rules for land ownership.

But the version that Kibaki's government finally introduced in a 2005 referendum was significantly watered down. Odinga broke with the government, leading a successful campaign against the referendum.

The political protests and ethnic violence that rocked the country following December's disputed election have highlighted again the dangers of a system where groups feel that the only way to enjoy a political voice or a decent share of government resources is to control the presidency.

Many political leaders and observers say that the political crisis has afforded an opportunity to seriously tackle the issue of constitutional reform.

Attorney General Amos Wako, who played a key role in introducing the weakened reform proposal in 2005, is among those expressing the sentiment.

"This is the defining moment," Wako said. "This is the moment when we can have a new constitution. Because of all that has happened now, this is the moment to address the issue."

University of Nairobi political scientist Peter Wanyande says that since President Kibaki is barred from seeking a third term in office, he may be more willing to accept a diminished role for the presidency.

"We would have a big problem if the president was hoping to contest the elections again in 2012 and therefore would want to have similar powers," Wanyande said. "But now that he is not going to contest, I think he will tend to support constitutional review including those that actually take away some of his powers."

Wanyande concedes that reform will still face obstacles from the political elite that benefits from the current system, but is optimistic that popular sentiment, as well as attention from the international community, will be able to overcome that resistance.

"Obviously there will be groups of people who will try to frustrate on the basis that it will affect adversely their interests," Wanyande said. "But the people are saying now that the pressure is just too much for a new constitution."

Analysts have credited strong pressure from the U.S. and the U.K. for convincing Kenya's government to accept a power-sharing deal with the opposition. But while the international community has stressed the need for addressing underlying problems including constitutional reform, it is unlikely to maintain the same sort of pressure on such long-term issues.

William Mutunga, of the Ford Foundation's Nairobi office, notes that the international community, while recognizing the need for reform, may also have some stake in preserving a strong president who can approve security or economic agreements.

"The U.S. military bases for example, and facilities," Mutunga said. "I think if that issue was taken to parliament, it will create a lot of divisions and disputes. What happens now is that it is the president who decides. We have also had examples of economic deals. The president can approve certain economic projects without consulting parliament."

Mutunga agrees that the pressure for reform - which he notes for the first time has vocal support from Kenya's powerful business community, in addition to the usual civil society organizations - will likely force a comprehensive review. But he says the government could still find ways to obstruct the process.

"They are going to basically say this thing won't go away so let's have a draft that people can look at but let's get them at the level of implementation," Mutunga said. "So that you can take chapters on human rights, and say ok, these ones can be implemented, on the issue of land, no we are not ready, on the issue of local governance, no we are not ready."

With the impact of January's unrest still visible in burned buildings and displacement camps and with Kenya still clinging to the international spotlight, politicians from all camps are preaching support for serious reform. But significant challenges lie ahead as the process drags on, and those politicians, many of whom have blocked reform efforts in the past, turn to the controversial details of land reform, decentralization, and presidential power.


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