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Kenya Steps Closer to New Constitution

  • Michael Onyiego

On Thursday Kenyan Attorney General Amos Wako released the final version of a new constitution to the Kenyan public. The document, which must be approved by national referendum, has wide support. But it also faces significant obstacles that threaten to extend the long wait for reform.

The release of the proposed constitution ends months of political wrangling over the document expected to replace Kenya's current constitution, which was drawn up when the country won independence in 1963 and is seen by some as a relic of the colonial era.

Approval or rejection in 90 days

According to the Constitution of Kenya Review Act, which set the review process in motion, the constitution must be presented to the public within 90 days for acceptance or rejection via a national referendum. The Interim Independent Electoral Commission of Kenya is required to finalize the referendum question within 5 days.

The Review Act also stipulates that political and civil society groups refrain from campaigning either for or against the proposed constitution for 30 days while the Kenyan public reviews the document.

Over 10 million Kenyans have registered to vote in the upcoming referendum, reaching the goal set by electoral commission. After being extended by two days, voter registration is set to close on Sunday.

Attorney General Wako urged young Kenyans to register for the referendum, saying the vote would affect the future of the country.

"I want to take this opportunity to appeal to all Kenyans, and in particular the youth," he said. "Because this is a new constitution, and it is really their constitution. Some of us who are old, we shall not live under the constitution for too long, but the youth will live under it. I would really appeal to them to make use of the remaining days and register as voters," said Waco.

What the new document entails

The proposed constitution's most significant reforms are aimed at Kenya's political and legal systems. Under the new constitution, much of the vast powers of Kenya's president have been transferred to the parliament and a newly formed national Senate tasked with protecting regional interests and minority rights.

The proposed constitution also includes a Kenyan Bill of Rights which guarantees certain standards of health, security, equality and freedom for citizens.

While the majority of Kenyan's support the new constitution, the next 30 days - termed the 'civic education' period - will prove crucial to its passage.

What Kenyans think of draft constitution

A poll released by Singapore-based polling firm Synovate after the Kenyan Parliament had closed debate on the draft found that while 64 percent of Kenya's population approved of the new constitution as a whole, 68 percent indicated that they disagreed with the inclusion of certain clauses. More than 80 percent of respondents also indicated they had not received enough information on the draft.

Two controversial issues in particular have polarized the debate surrounding reform: abortion and Islamic courts. Many Christian groups in Kenya have vowed to oppose the new constitution over a clause which permits doctors to perform abortions if a mother's life is in danger.

They also oppose clauses in the draft which allow traditional Islamic courts to preside over marriage, divorce and inheritance issues when both parties are consenting Muslims. The courts have been operating in Kenya since the 19th century, but the powerful National Council of Churches of Kenya argues that including it in the constitution is tantamount to discrimination.

It is unknown how the council's stance will influence the largely Christian nation, but the Secretary of the Law Society of Kenya, the national bar association, Apollo Mboya, says any issues can be amended in the future.

"There is no perfect document. So we need to pass this constitution," he said. "If we were to ask any person one simple issue they have with this constitution you we can get as diverse of proposals as we may wish because some people hold certain issues very dearly to their hearts and they can bring any issue on any article of the constitution," said Mboya.

Kenya has been trying to replace its current constitution since the early 1990's. The current push is part of a peace agreement reached in 2008 between President Mwai Kibaki and Prime Minister Raila Odinga to end weeks of violence which gripped the country after a disputed presidential election.

Allegations of vote rigging by both candidates sparked ethnic clashes among supporters, leaving over 1000 Kenyans dead and some 300,000 displaced. In striking the peace deal, President Kibaki and Mr. Odinga formed a unity government and agreed to push for a constitutional reform.

The political divisions which sparked the post election violence were born out of a 2005 referendum to replace the constitution. Some in Kenya see the current referendum as an ominous repetition of history, but many are quick to point out that both the President and the Prime Minister, bitter rivals in 2005, are now allies for reform.

Kenyans have been waiting for a new constitution for almost two decades, but 90 days from now, the wait could be over.