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Constitutional Void in Kenya a Major Cause of Post Election Violence

A group of leading Kenyan intellectuals says one of the major causes of the current crisis in their country is their government’s refusal to adopt a new constitution. Violence exploded in Kenya after President Mwai Kibaki was declared the winner of elections held in late December. Supporters of his chief rival, Raila Odinga, accuse the president of “stealing” the election from Odinga. Efforts at ending the conflict are ongoing, but almost a thousand people have already died and thousands have been driven away from their homes. In the third part of a series on the situation in Kenya, VOA’s Darren Taylor focuses on the Kenyan leadership’s failure to embrace a democratic constitution as a key driver of the crisis.

“A massive part of the tragedy is Kenya’s failure to adopt a new constitution. The Kibaki government has really frustrated all efforts to adopt a draft document that seeks to give Kenyans more freedoms and more control over the country’s wealth and resources,” says Stan Gazemba, winner of the East African nation’s top literary prize, the Kenyatta Award.

“The biggest problem is not ethnic cleansing. The biggest problem is the failure of the constitution and the perceived failure of the state,” says Binyavanga Wainaina, winner of the Caine Prize for African Literature and the founder of Kenya’s Kwani literary journal.

Rasna Warah, a columnist for the country’s leading newspaper, the Daily Nation, says Kenyans are basically being governed by means of a “colonial” constitution.

“The constitution we have inherited, the laws that we have inherited, are colonial laws. The way the country’s resources have been distributed, the way justice is dispensed, the way our institutions are governed – are our colonial legacy. Nobody bothered changing the laws for more than 60 years. And now we’re paying the price of that.”

In 2002, as part of his campaign to be elected following the dictatorial rule of his predecessor, Daniel arap Moi, President Kibaki promised his compatriots a new, more democratic constitution within 100 days of his taking office. Kenyans duly chose him to lead them but are still waiting for him to follow through on his pledge.

Consequently, says Warah, “we’re managing the country using laws that are archaic and irrelevant and not responsive to the new needs of Kenyans.”

At issue, say analysts, are the immense powers granted to the president in terms of the present constitution.

“The problem is that the president in this country is bestowed enormous powers,” says Warah.

“When you become president, it’s a sort of winner-takes-all situation. The enormous powers held by the presidency are the reasons why the presidency is so contentious, are the reasons why people want to be president. Because it allows you to use the resources of the country the way you see fit. There are no constitutional provisions to ensure that you don’t do that.”

The presidency is therefore seen as a route for the election victor – and by extension his ethnic group – to riches.

“This is why so many people in Kenya, and especially the Luo, are so angry about the elections fiasco. They expected that with an Odinga victory, more resources would come their way,” says Muthoni Garland, another of Kenya’s top authors.

“Because the presidency comes with so many discretionary powers, it’s assumed that the ethnicity of the president will determine which ethnic group benefits,” adds Warah.

“The institutions that would curtail excesses of the presidency don’t exist. So the fundamental problem is that the laws, the constitution and the institutions of this country do not ensure equity and justice.”

She says Kenya’s post-election calamity “would never have happened” had the country had a “just and fair” constitution in place.

“If the presidency had less powers, it wouldn’t be so threatening. It wouldn’t matter who was president, because the institutions (such as the judiciary) would be functioning, the laws would be just, the president would not be allowed to get away with deciding how public resources are going to be spent. There would be an equitable distribution of resources in law, and in the constitution. So that no matter who became president, everybody in the country would be taken care of,” Warah explains.

Wainaina says the Kibaki administration reneged on its promise to deliver a new constitution – simply because it knew it would restrict the president’s powers “severely” and they “feared an erosion of their wealth and political standing.”

But describes as a “myth” that all Kikuyu voted along ethnic lines during the December election.

“(Kenyans of all ethnicities) knew the constitution was failing us. We knew the idea of having a president was merely an imperial being – similar to the whole idea of the governor of the colony, with power over life and death, above the law, able to shut down parliament when he wants. We voted against this; we voted in the hope of change,” Wainaina emphasizes.

He says most Kenyans want a constitution that “allows civil society to take more control, that reduces the president’s power and puts more control in the hands of the people themselves – like the judiciary and other organs – and installs checks and balances against the abuse of executive power.”

“We no longer want a godlike president,” Garland affirms.

She says having an all-powerful president has created a “sense of paranoia” in Kenya, “because when you’ve got someone who’s clearly ethnically partisan, then he can clearly abuse whatever powers he wants and really oppress groups he perceives to be opposed to him.”

This “poisoned atmosphere,” Garland says, characterized the run-up to the December polls, and erupted into open conflict after the disputed election results were announced.

Wainaina says: “A lot of the (political) games that have been played the last few weeks are trying to obscure the real problem: We’ve had constitutional failure. The constitution cannot carry this country anymore.”

Garland laments a “dearth of statesmanship” and “quality leadership” in her homeland.

“Our terrible constitution has allowed inferior people to dominate Kenyan politics. Kibaki’s greatest failure has been his inability – or refusal – to get us a new constitution. What we’re seeing now is really the results of that frustration. All the inequalities that have always been there have become more glaring, because Kenyans are better educated, and also all the corruption that’s endemic in the very poor systems of government has created the situation that we’re in.”

But Gazemba is optmistic that in the future Kenya will embrace laws that improve the lives of all in the country.

“The idea (of a new constitution) is not going to go away. Because now the masses know that this thing needs to be reclaimed by the people. Our destiny can no longer continue to be held by one individual. The way it is at the moment – if the president sneezes, the entire country catches a cold. This has to end. Kenyans must be in greater control of their destinies.”

Gazemba’s convinced that Kenya’s post-election crisis has set the scene for his compatriots to again strive for a better constitution – one that puts faith in rule of law, rather than in an almighty president…whoever that leader eventually turns out to be.