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Kenya legal reforms dogged by politicians, church

By on April 9, 2010

Kenya is preparing for a referendum on a draft constitution meant to avert a repeat of the post-election tribal bloodletting that shook east Africa’s largest economy in early 2008.

The new charter, seen as a crucial step in healing the ethnic divisions that plague Kenyan politics, is generally expected to win approval in a referendum likely in July but could yet fall foul of emotive issues of land and abortion.

An earlier attempt to rewrite the constitution in 2005 was shot down in a highly polarised vote, largely because it failed to dilute presidential powers. However analysts expect most political leaders to campaign with a united voice this time.

“In many ways it is a big leap forward,” constitutional lawyer Patrick Lumumba said.

“The general sense is that a critical mass of parliamentarians will pull in one direction, that is the direction of an endorsement of the draft by the electorate.”

Kenyans have been calling for a new constitution since the 1990s to replace one dating back to 1963. Guarantees of a new charter was key to a power-sharing deal in 2008, ending weeks of violence that killed around 1,300 people after a disputed poll.

The new legal framework would curtail sweeping presidential powers and strengthen civil liberties. Parliament last week voted unanimously in favour of the draft.

But some politicians have threatened to back a ‘no’ vote in the referendum, angry at the failure to devolve power to the regions and plans to cap private land holdings.

Christian church leaders are also vowing to spearhead a ‘no’ campaign after an amendment to abolish abortion on medical grounds failed, while Islamic courts dealing with divorce and inheritance were left enshrined in the constitution.

“Kenyans are once again headed to a referendum where they will be highly polarised … their leaders are forcing an unjust document that enshrines injustice down their throats,” said a statement by church leaders.


“The potential for scuttling should not be under-estimated,” said former legislator and prominent lawyer Paul Muite.

Economic analysts said that a ‘yes’ vote could help ease investors’ concerns about a repeat of the 2008 violence that dented Kenya’s economic growth in 2008 and hit regional trade.

“There are still (ethnic) tensions … and a positive outcome … could ease those tensions that have a lot to do with abuse of power,” said independent analyst Robert Shaw.

Foreign exchange traders said a surprise ‘no’ vote would be a blow to the fragile coalition government and might generate a short-term negative reaction in international markets.

Legal experts say that on paper the draft constitution could herald an end to Kenyan politics being defined by ethnic loyalties and characterised by cronyism and corruption.

Under the new proposals, presidential appointments to high-ranking public sector jobs will need lawmakers’ approval.

Constitutional lawyers also expect that by preventing the president and ministers from sitting concurrently as lawmakers, parliament will act more effectively to check the executive.

But Lumumba warned that a new constitution would not change the behaviour of politicians overnight.

“It is not an instant coffee solution. There were those who were born and bred on ethnic politics and they are not about to abandon it,” he said.


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