Kenya’s
Constitution
by: The Editor, November 28,
2005
The militant American black nationalist leader El-Hajj Malik El-Shabazz
better known as Malcolm X, in his autobiography explains that if you
are competing with an advisory who always wins then he is doing
something you’re not. In African politics, all too often incumbents win
elections. However, they win not because of the will of the people, but
because they are doing something the opposition is not…. often
cheating, intimidating and manipulating on a grand scale.
On November 21 Kenyans voted to reject the draft constitution that
would introduce changes to the current constitution that include, most
prominently, a strong president with a weak prime minister. As
correctly stated by President Mwai Kibaki, the referendum was a major
leap in the consolidation of democratic governance in Kenya. This is
because the referendum was held relatively peacefully and although the
opposition won, the president did not resort to illegal tactics steal
the vote. Like Daniel arap Moi before him, President Kibaki opted to
respect the will of the people. This is admirable in African politics
where ever election is watched with anxious expectation out of fear
that the incumbent may choose to stay on despite the will of the people.
Strong vs. Weak President
Although the referendum included several important modifications to the
Kenyan constitution such as establishment of Christian religious
courts, women’s property rights, election of local leaders and a ban on
abortion, the election campaign turned on the distribution of power
between the president and prime minister. Supporters of the
constitution, which included President Kibaki, argued for a strong
president and a prime minister appointed by the president. Their
opponents, who included 7 of President Kibaki’s ministers and the
opposition, sought an elected Prime Minister who would share power with
the president. They argued that a strong president as envisioned by the
referendum supporters would fuel ethnic tensions.
What Next?
After defeating the draft constitution, the referendum’s opponents in
parliament may seek to bring down the government by forcing a vote of
no-confidence in the government as they have suggested in the past.
This is certainly within their right and if initiated, must not be
taken as a personal attack by President Kibaki.
In order to ensure continued consolidation of democracy in Kenya, all
parties must continue to pursue legal options. In that regard,
President Kibaki should response to political maneuverings on the part
of the opposition with legal and ethical responses.
There is also the issue of the opposition calling for mass action to
force the government out of office as they have suggested they may. The
calling of mass action to unseat a democratically elected government is
an important matter that should not be resorted to lightly.
Mass protests may promote and consolidate ethnic divisions in Kenya.
This will reverse democratic gains made in Kenya- a development that
would be to the detriment of most Kenyans. The opposition must respond
in a manner that ensures peaceful coexistence amongst all parties.
Cabinet Dismissed
As a result of the referendum defeat, President Kibaki has sacked his
entire cabinet and postponed the reopening of parliament. This bold
move, although constitutionally questionable, provides the president
with significant latitude to responding to the referendum defeat. He
has the opportunity to select a cabinet that will represent the will of
the people of Kenya. President Kibaki should select a cabinet with an
eye toward reconciliation. Only be reconciling himself with the will of
the people of Kenya can he expect, and indeed should he deserve, to
remain in power. If President Kibaki intends to contest future
elections, he should immediately initiate changes that will align
himself with the majority of voters in Kenya. The first may be to join
the people of Kenya in working toward a constitution that more
equitably distributes power between a President and an elected Prime
Minister.
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