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Fraud, Fears of Violence Complicate Kenyan Reform

  • Michael Onyiego

The Interim Independent Electoral Commission of Kenya announced Friday that a referendum to enact a new constitution will be held August 4. The poll could end a two-decade wait for a new Kenyan constitution.

The proposed constitution is the product of months of political wrangling. Disagreements over the legality of abortion and the jurisdiction of Islamic courts provoked a significant backlash within parliament and among average citizens. But the document was eventually approved by lawmakers and sent to the attorney gneral for publication ahead of the referendum.

According to the Electoral Commission, which will administer the poll, over 12 million Kenyans have registered to vote, and copies of the proposed constitution are being printed for public review.

But controversy now surrounds the proposed document. A discrepancy between the draft certified by Attorney General Amos Wako and some of the copies released by the government printer was revealed earlier this week.

Section 24.1(d) of the correct version prohibits any law from limiting the Kenyan Bill of Rights so long a right "does not prejudice the rights and fundamental freedoms of others." This phrase was amended in an estimated 20,000 printed copies to read "does not prejudice national security, the rights and fundamental freedoms of others."

Suspicion has fallen to the National Security Intelligence Services after Attorney General Wako revealed the agency had asked for the addition when Parliament approved the draft. Wako said he rejected the request on the grounds that the Constitution of Kenya Review Act, which has governed the reform, prohibited him from doing so.

Wako has maintained his innocence and the government printer confirmed that the correct version was recertified when received, implying that the document was changed during printing.

But many fingers remain pointed at the attorney general. Justice Minister Mutula Kilonzo said that legal responsibility lay in the Office of the Attorney General, and Minister for Higher Education William Ruto said the controversy has tainted the entire reform process.

"We want to know, the Kenyan public want to know under what part of the constitution or the Review Act did the Attorney General derive the power to amend and to alter the draft constitution that was presented to him by the national assembly. Now that we have two fundamentally different draft constitutions, what is the status, the legality, the legitimacy of the referendum?" He asked.

William Ruto is one of the foremost critics of the proposed constitution. His opposition has cost him politically: last month, he was moved from the Ministry of Agriculture to the less prominent Higher Education post and the leader of his party, Prime Minister Raila Odinga has publically berated him for his break from the party line.

Ruto's criticism underscores a larger rift in Kenyan public opinion that could have violent consequences.

The minister hails from the Rift Valley, a large, agriculturally oriented area of western Kenya. Like many of the communities in the area, his main grievance concerns land.

Many Kenyans in the Rift Valley are small scale or subsistence farmers who view the land as communal property owned by the people who have historically farmed them. Under the current constitution public land is controlled by the central government and can be reallocated without the permission of its traditional residents.

Politicians in the Rift Valley had hoped to use the proposed constitution to give control of public land to regional authorities through the creation of a federal system of government, but a centralized model won out, adding to regional frustrations over representation.

According to a researcher for PeaceNet Kenya, Sellah King'oro, western Kenya could experience another bout of violence if the proposed constitution is passed.

"The problem would arise if the draft constitution would go through. Then the people of the rift valley would rise up against those they consider non-indigenous in those areas so that they can secure the leadership of the area and secure the land itself. We are looking at having something akin to what happened in 2007," said King'oro

The issue of land in western Kenya has repeatedly provoked conflict throughout the country's history. In 2005, another attempt to replace the constitution failed, due in part to the land issue.

The political divisions born out of that defeat are largely to blame for the violence which engulfed Kenya after a disputed 2007 presidential poll. President Mwai Kibaki and Prime Minister Raila Odinga were opponents for both the 2005 referendum and the presidential election in 2007.

Both parties accused each other of tampering with the December 2007 poll, sparking clashes between their supports in early 2008. The chaos left over 1,000 dead and some 300,000 displaced.

But the current attempt at constitutional reform has the support of both President Kibaki and Prime Minister Odinga. Kenyans are nervously waiting to see if the alliance will ensure peace as the country heads to the polls in August.

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