Controversy mars countdown to constitutional referendum

Controversy, invective and violence have marred the run-up to the first-ever referendum in Kenya, which will either reject or ratify a proposed new constitution on Monday.

More than half of the 11 million registered voters are expected to turn out at polling stations across the country.

The referendum debate has bitterly divided this East African nation. Since the start of the campaign nearly three months ago, political rallies across the country have been the scene of violent clashes between rival camps and police.

Thus far, eight people have died and scores were injured in rallies in Mombasa, Kisumu, Kakamega and Garissa.

The two sides of the referendum question have traded blows, insults, lies and propaganda, prompting church leaders to hold prayer services for a peaceful outcome. Some Nairobi-based diplomats also fear that the country might plunge into chaos after the vote.

In the last few days, however, there has been a tentative calm, with tough police measures in place.

A divided nation

The fight over the proposed new constitution has polarised the two blocs, identified by the banana symbol for "Yes" and the orange for "No".

President Mwai Kibaki supports the "Yes" camp, while his roads minister, Raila Odinga, and five other cabinet ministers are leading the "No" campaign in what looks like a cabinet revolt.

The referendum also seems to pitch two major ethnic communities against each other, with the Kikuyu largely behind the "Yes" vote and the Luo supporting the "No" vote. None of the other ethnic groups are allied as solidly to a specific side, and many people now see the referendum as a popularity contest between Kibaki and Odinga.

The proposed constitution, popularly known as the Wako Draft after the country's attorney general, is intended to replace the independence constitution, which was negotiated in London in 1963, when Kenya gained independence from Great Britain. The document was conceived by Kenya nationalists but without the participation of the Kenyan people.

Both camps agree that the existing constitution is outdated and oppressive but have failed to reach consensus on the new one, which has been the subject of debate since 1997.

The Wako Draft is the final result of a complicated "people-driven" process to rewrite the constitution, which began with the enactment of the Constitution of Kenya Review Act of 1997. One of the objectives of the review was to reduce the excessive powers vested in the presidency. Another was to decentralise the government and bring it closer to the people.

These objectives and other rights-based issues were incorporated in the so-called Bomas Draft. The draft, however, was by no means a consensus: Some of the delegates to the Bomas assembly walked out in disagreement before the final document was put to vote.

Later subsequent initiatives, aimed at consensus and reconciliation, produced the Naivasha Draft and finally the Wako Draft, the subject of the referendum on Monday. The Bomas Draft has been consigned to history, though it remains the reference document for those opposed to the Wako Draft.

Members of the "No" camp argue that the document does not reflect the wishes of the people of Kenya as manifested in the Bomas Draft. In particular, they say, the draft has glorified the powers of the president, making him a "king".

They are also unhappy with the devolution of powers, the conditions and voter thresholds for electing a president, the powers of the prime minister and the appointment of the cabinet.

Odinga stated that the Wako Draft seeks to reintroduce in Kenya a presidential powerhouse of the kind that prevails primarily in the US where, he argued, it works well only because of its long history, strong system of checks and balances, and extraordinary level of devolution.

"If introduced in Kenya, such a system would be a recipe for dictatorship," he said.

Kipkalia Kones, a nominated member of parliament and supporter of the proposed constitution, disagreed, calling Odinga’s statement "one of the biggest lies that politicians opposed to the proposed new constitution have peddled since the referendum campaigns began."

Kones maintained that the new constitution does not increase the power of the president: "The draft expressly states that all power and authority ultimately belongs to the people. Therefore presidential power can only be exercised for the well-being and benefit of the people."

The Yes camp point out that the presidential powers to prorogue and dissolve parliament have been taken away and that parliament will control its calendar. The authority to allocate land has also been handed over to an independent National Lands Commission. Presidential appointments under the new constitution will be subject to parliamentary approval.

"The powerful president Kenyans are being cheated about does not exist in the proposed new constitution. Nor does the king or monarch," said Kones.

The "Yes" camp argued that the Wako Draft was agreed upon by parliament in subsequent initiatives and largely reflects the Bomas Draft and the will of the people.

The "No" side, however, strongly disagreed.

The "No" campaign argued, for example, that the document merely delegates but does not devolve power.

"In the Wako Draft, devolution has been thrown to the dogs while delegation has been canonised as the preference of the Kenyan people. This deception must be exposed and rejected with a big No at the referendum," said Anyang' Nyong'o, minister for planning and national development.

Musikari Kombo, the minister for local government, countered that the new constitution will ensure equality of all communities in Kenya.

"The proposed new constitution recognises the right of local communities to manage their own affairs. Under the new constitution, they will make their own decisions regarding their resources. This is what self-government is about," he said.

Attorney General Amos Wako has defended the proposed constitution, saying it captures the views of wananchi (citizens) as manifested in the Bomas draft. "My role was to use Bomas draft as a benchmark and incorporate some amendments passed by parliament and that is what I did," he said on Wednesday.

In the run-up to the referendum, the Yellow Movement, a civil-society group allied to the "No" camp, challenged the proposed constitution in court. They sought a declaration on whether the constitution-making process, including the 21 November referendum, was valid.

The constitutional court ruled on Tuesday in favour of the referendum, arguing that neither parliament nor the courts had the authority to stop the referendum because it involved the constituent power of the people to make a constitution.