Voting on a constitution: Implications for democracy in Kenya

Abstract

In November 2005, Kenya held its first-ever national referendum on a proposed constitution. After a contentious review process, 58% of voters rejected the final document. It is common in the analysis of Kenyan politics to rely on ethnic explanations; indeed, the referendum results cannot be understood without exploring ethnic cleavages in Kenyan society. However, an exclusive focus on ethnicity obscures other factors that influenced voters, including the controversial process of drafting the constitution, the mobilisation efforts of the ‘yes’ and ‘no’ campaigns, and the perceived performance of the government. In the end, the referendum was seen as a positive step toward democratic consolidation in Kenya and raised hopes for the future. For the second time in three years, voters rejected the preference of the sitting government, which respected the results. Hopes were dashed, though, when irregularities marred the 2007 election and the announcement of contested results sparked a wave of violence. Under intense domestic and international pressure, the opposing sides reached a power-sharing agreement, as the need for a new constitutional order in Kenya became even more apparent.

Keywords:

• referendum
• constitution
• ethnicity
• democratic consolidation
• power sharing

Notes

1. For a detailed account of the politics underlying constitutional changes in the 1960s, see Okoth-Ogendo (1972).

2. By the 1990s, President Moi (a Kalenjin) had managed to reconstitute his former KADU alliance of smaller ethnic groups in KANU; meanwhile, leading Kikuyu, Luo, and Luhya politicians had started their own opposition parties. Thus, having opposed majimboism in the earlier period, KANU was its leading proponent in the 1990s.

3. For an examination of this process during the 1960s, see Okoth-Ogendo (1972).

4. Cliffe (2006) describes the constitutional debates as a ‘three-way struggle’ among the government, opposition politicians, and civil society organisations.

5. As Cottrell and Ghai (2007, 6) mention, ‘people-driven’ was ‘a phrase that inspired many, though prompting ridicule from a few’.

6. The Parliamentary Select Committee formed to spearhead the review process was chaired by then-presidential ally Raila Odinga, a Luo politician who would eventually become a leading figure in the ‘no’ campaign.

7. Named after the building where it was formed.

8. Several opposition figures and civil society representatives still opposed the merger of the two processes, in part because they feared the politicians would dominate; their concern would turn out to be quite prescient.

9. Odinga's support was crucial to the success of the NARC coalition because of his influence among Luo voters. Most believe Kibaki would not have won the election without Odinga's support.

10. For more on the opposition victory in 2002, see Ndegwa (2003) and Brown (2004).

11. In the first Afrobarometer survey conducted just months after the election, Kenyans offered strongly positive assessments of government performance, the quality of democracy, and national economic conditions. The survey also found overwhelming levels of support for constitutional reform to strengthen democracy in the country (Wolf et al. 2004).

12. Kibaki's most loyal advisors are primarily from the Kikuyu, Embu and Meru communities near Mt. Kenya.

13. The Bomas draft had proposed four levels of government (national, regional, district, and locational); the Wako draft proposed just two (national and district).

14. Such favours were reported by the media almost every day in October 2005.

15. Like a previous ‘Middle Ground Group’ that tried unsuccessfully to unite opposition candidates against Moi in 1992 and 1997, the 2005 group included Nobel Laureate Wangari Maathai.

16. The referendum results were reported by the electoral commission of Kenya both on its website and in the Daily Nation newspaper.

17. These groups were culturally and politically affiliated through the Gikuyu, Embu, Meru Association (GEMA).

18. The so-called KAMATUSA include the Kalenjin, Maasai, Turkana, and Samburu.

19. All constituencies in the province except 10 that are home to the ethnic Kisii community.

20. This term refers to the Kamba-dominated constituencies in the southern part of Eastern Province.

21. National voter turnout was 53%, lower than the 1997 and 2002 elections. Reasons for the low turnout include ineffective voter education, limited relevance to average Kenyans, and a general frustration with politics.

22. This split would become even more apparent in the aftermath of the controversial 2007 presidential elections.

23. The Orange campaigners adopted this name after the referendum.

24. This suggested that no-campaigner Mudavadi continued to hold some sway in Western Province, despite having lost his parliamentary seat there (and his vice-presidential bid as Kenyatta's running mate) in 2002.

25. The second Afrobarometer survey found that satisfaction with ‘the way democracy works in Kenya’ dropped to 53% in 2005 from 79% just two years earlier. Assessments of government performance in the fight against corruption in particular plummeted to just 40% approval from 85% in 2003 (Logan et al. 2007).

26. The results of the Steadman Group poll were reported in the Daily Nation, 22 October 2005.

27. While many claimed to reject this approach, the GEMA groups clearly endorsed a practice that benefited them.

28. In the months surrounding the referendum, the authors got caught up in discussions about the proposed constitution everywhere they went. One author's fluency in Kiswahili allowed for conversations with people from a range of socio-economic and educational backgrounds. Although ad hoc and informal, these interviews painted a broad picture of the factors influencing the results. The authors are grateful to many students, colleagues, and acquaintances who offered their views.

29. Martha Karua was elevated from Minister of Water to Minister of Justice and Constitutional Affairs, making her an important player in any subsequent review process. Raphael Tuju was given the foreign affairs portfolio after breaking with voters in his Luo constituency.

30. Attention focused especially on Minister of Health Charity Ngilu and Minister of Local Government Musikari Kombo, whose parties were the other major components of the original NAK coalition (along with Kibaki's) that had joined with LDP to form NARC. They felt they should have been consulted more extensively and that their parties should get more senior posts. Kombo was especially interested in the vice-presidency, a position that his party held until Michael Wamalwa's death in 2003.

31. An exception was the Nobel Peace Prize winner Wangari Maathai, who refused to resume her position as assistant environment minister until Kibaki sought to build bridges with the Orange campaign leaders.

32. As leader of the opposition under Moi, Kibaki stated that a cabinet need not have more than 15 ministers.

33. Artur Magaryan and Artur Sargasyan first captured headlines in March 2006, when government officials denied allegations that they were involved in the raid on the Standard newspaper. The situation became stranger when one of the men confessed his love for Winnie Wangui Mwai, a young woman whose mother is a close personal friend (and rumoured second wife) of President Kibaki. After an incident at Nairobi airport during which the men brandished guns in a secure area, they were deported (rather than being arrested and charged). A raid on their home found weapons, government licence plates, and other suspicious items. In 2007, a parliamentary report concluded that the two men enjoyed high-level government protection during their time in Kenya.

34. Although the move was within the president's existing constitutional powers, critics noted that Kibaki had been a strong proponent of the 1997 IPPG agreement that required then-President Moi to appoint several opposition nominees to the commission.

35. Observers estimated that the turnout was roughly 70%.

36. The mismatch between tallies announced at polling places and final results reported by the commission contributed to the conclusion by international observers that the election was not free and fair.

37. After the agreement was signed, as parliament moved to enact enabling legislation, there continued to be tense debate about what executive powers the new prime minister would have.

38. For this reason, Kenyans were particularly concerned about the subsequent raid on the Standard in March 2006.

39. Scranton (1993) offers a similar conclusion about a 1992 referendum in Panama in which voters rejected a constitutional reform package.