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New Constitution in Kenya Could Bring Long-Awaited Reform

After nearly two decades of waiting, Kenyans may finally receive a new constitution. Political leaders are calling for Kenya to support the proposed set of laws, but controversial amendments threaten its passage through referendum in the coming months.

Kenya moved one step closer to reform last week when parliament unanimously passed the proposed constitution and sent it to the attorney general for drafting.

Kenyans have been calling for a new constitution since the early 1990's. The current constitution has been in effect since independence from Britain in 1963 and many see it as outdated.

An attempt was made in 2005 to pass a new constitution, but the proposed draft was rejected in a countrywide referendum that polarized the nation. The 2005 referendum was seen as a direct cause of the ethnic violence that rocked the country after a disputed presidential election in December of 2007.

More than 1,000 people were killed and more than 300,000 driven from their homes as supporters of President Mwai Kibaki and his challenger, Prime Minister Raila Odinga, clashed amidst allegations of vote rigging.

The current push for a new constitution is part of a power-sharing agreement reached between Mr. Kibaki and Mr. Odinga in February of 2008. The agreement, mediated by former U.N. Secretary General Kofi Annan, created a unity government and affirmed the commitment of both sides to constitutional reform.

Many hope that the effort will address longstanding issues of tribalism and corruption in the east-African nation.

In an interview with VOA last month, Kenyan legislator Gitobu Imanyara said that the new constitution was a significant step towards democracy. "After fighting for more than 20 years, we shall have a brand new constitution for Kenya that marks a significant departure from the one party institutional framework that has been responsible for so much harm in this country," he said.

Major changes

The new constitution proposes major changes to Kenya's political and legal systems. Among the most significant reforms is the decentralization of the government's power.

The far-reaching authority of the presidency has been curtailed in favor of a stronger legislature and a newly established senate will work with parliament to protect minority rights.

The draft also establishes a Kenyan bill of rights that guarantees citizens high standards of health, security, equality and freedom.

President Kibaki and Prime Minister Odinga have expressed support for the new constitution.

But the reform process has not progressed without controversy. The proposed constitution was initially submitted to parliament by an international committee of experts, appointed to draft the constitution. Over 60 amendments to the draft were proposed, but a deeply divided parliament failed to pass a single one.

With the draft moving towards a referendum, Kenya's churches have emerged as the most significant threat to its passage.


Many religious groups in Kenya are opposed to a provision in the document that allows doctors to terminate a pregnancy if it threatens a mother's life.

They are also opposed to articles that allow traditional Islamic courts to adjudicate disputes over marriage, divorce and inheritance when both parties are Muslim and consent to bring the case before a Muslim judge.

The majority of Kenyans are Christian and the National Council of Churches of Kenya has threatened to reject the constitution if the clauses are not removed. Muslim leaders in Kenya say they will review the document before deciding to whether or not to back it.

The international community has been supportive of Kenya throughout the process. Monday a statement from U.S. Ambassador to Kenya Michael Ranneberger, urged Kenyans to move forward, saying that the proposed constitution will "ensure greater accountability and adherence to the rule of law."

But some feel the Islamic Courts threaten equality in Kenya. The director of international operations for the U.S.-based American Center for Law and Justice, Jordan Sekulow, said the international community, fearing another outbreak of violence, was pressuring those with concerns to support the draft.

"Those who have criticized the constitution are being heavily criticized by members of the media in Kenya as well as by those from international organizations like the UN, other representatives like Kofi Annan as well. The true symbol of a real flourishing democracy, though, is not everyone keeping their mouths shut and going along with whatever the United Nations or international organizations want," he said.

According to the Constitution of Kenya Review Act, which has governed the reform, Kenya's Attorney General, Amos Wako, has 30 days to draft the proposed constitution. He will then submit it to the public for review ahead of the referendum.

A date for the referendum has not yet been set, but the vote is expected to be close. There are concerns that the defeat of the constitution could lead to another outbreak of violence.