Kenyans Rally for a New Constitution

By Terisa E. Turner, Leigh S. Brownhill, Kiama Kaara and Tom Keefer. July 1, 2004.

(Note: There is now an audio version of the interview that Tom Keefer did with Wahu Kaara about the constitutional process and upcoming protests.
It can be heard here)

Two rallies will be held on Saturday 3 July 2004 in Nairobi, Kenya. The first, at Freedom Park or Uhuru Park, is declaring, on behalf of all Kenyans, its support for the immediate adoption of a radically democratic constitution which has been drafted by popular forces over the past several months. The counter-rally is being held in opposition to the duly drafted peoples’ constitution. It is being organized by the political elite which has everything to lose if the citizens’ draft goes forward. The IMF and World Bank are opposed to the popular version because it vests significant political and economic decision making power in the local village councils, the district and regional government bodies and in the national parliament.

The new constitution was created with the full involvement of all sectors of Kenyan society; most notably women, rural and urban poor people, the disabled and the dispossessed. The very political elite which is now damning the approved document was also integral to this process. The elite of today was, prior to December 2002, in opposition or outside the formal political arena altogether. Some were in jail as political prisoners or in exile abroad. Forty years of KANU rule was overturned in the 2002 election which brought the current coalition government to power. This victory was won largely on the promise to voters that a truly democratic dispensation was in the offing, in part through the creation of a peoples’ constitution. But when the outsiders secured power through a coalition government (the National Rainbow Coalition called NARC) many drew back from the fundamental social implications which follow from economic and political power shifting to ordinary citizens, most of whom are in rural Kenya.

While fully participating in the duly constituted process for arriving at a new constitution, this political elite (a faction of the ruling party); at the eleventh hour when the 621 delegates began to vote chapter by chapter on the draft constitution, suddenly determined that its interests, and those of its masters – the IMF and World Bank were not being served. In fact their class interests were seriously threatened by provisions for popular democracy in the new constitution.

The terms of reference for delegates voting and approving sections of the new draft provided for the designation of any chapter which was rejected by one-third of the 621 voters as ‘contentious’. Such chapters would then be subject to further negotiations and revision until they secured more than two-thirds of the total delegates’ support. However, on 15 March 2004 all chapters were passed by more than two-thirds of the delegates. On realizing that the draft constitution was being approved by a majority which supported its popular power provisions, the political elite walked out (led by Kiraitu Murungi the Justice and Constitutional Affairs Minister and Moody Awori, the Vice President of Kenya). Government ministers and a minority faction of the ruling coalition now denounced the very constitutional conference of which they were, prior to their walkout, an integral part. Earlier the newly elected government had promised that the new constitution would be in place within the first 100 days of its rule, approved as a whole by Parliament. Having failed to approve a new constitution by March 2003, President Kibaki extended the deadline until the 30th of June 2004. Now the political elite searched for methods by which this second deadline could be avoided. Three legal challenges to the constitutional process were filed in Kenya’s courts. The head of state announced that the peoples’ constitution was ‘unwieldy,’ and that more “consensus-building” was necessary. On June 29th he published a proposed bill for Parliament’s consideration which introduces yet another series of steps for arriving at a constitution, postponing the completion of the process until March of 2005. This draft bill treads on the duly constituted procedure by overriding it with extraneous new powers accorded to Parliament to amend the peoples’ draft at will. In contrast, the original terms of reference insisted that the popularly established drafting commission must produce a completed draft that is not subject to amendment. He reshuffled his cabinet on 30 June. Members of Parliament were given positions in cabinet and the ministries in order to separate them from the popular majority of parliamentarians in favor of the peoples’ constitution. The cabinet reshuffle incorporates members of the opposition parties into the political elite.

Finally, Kibaki alleged tribalism on the part of those insisting that due process be followed and the popular constitution be adopted, without amendment, by Parliament. The majority ethnic nationality in Kenya, the Kikuyu, he alleged, were under threat by the constitution as drafted and by its supporters. In fact, the issue is one of class, not ethnicity.

The IMF announced on 29 June that it would not release a loan to the Kenyan government until a constitution was in place. It opposes the creation of local, regional and district political bodies that are democratically elected and for which citizens have the power of recall. These democratic organs as well as the national parliament consist, according to the new constitution draft, of elected but recallable representatives of the people. The IMF and World Bank especially object to vital economic matters being within the jurisdiction of local and regional councils. The constitution creates openings for citizens at the local level to claim political space that could be used to deny multinational corporations and international financial institutions easy access to Kenyan resources. Local councils, which have ten members (of which at least three must be women), can give priority to food production over export crops or tourism or mining. The environmental imperatives regarding trees, water and land use are within the jurisdiction of regional and local government levels. Moreover, IMF and World Bank loans cannot be agreed to by Kenya, according to the new constitution without Parliamentary approval as the repayment possibilities and implications have to be laid out and agreed by Parliament prior to acceptance. This contrasts sharply with the current practice whereby the President has sole power to incur debt. The IMF and World Bank object that these provisions are unwieldy and would lead to inefficiency. Proponents of the peoples’ constitution reject such claims and point to the theft of funds from previous loans by members of the political elite. In addition, they contend that the crisis now facing millions of starving Kenyans follows directly from the conditions imposed by the IMF and World Bank for previous loans. Foremost amongst these oppressive conditions is the IMF’s insistence on rural people producing coffee, tea and vegetables for export rather than food for local consumption.

Kenyans have fought since July 7, 1990 for a democratic political system. On that date a general strike and mass rally in Nairobi defied the dictatorial regime headed by Moi. The insurgents demanded an end to single-party rule. They wanted to remove from Kenya’s constitution a section which stipulated that only one party could engage in politics. In 1991 Moi was forced to repeal this section and allow other parties to be registered. Popular forces wanted even more democratic change. They demanded a new constitution which would effectively put political and economic power in the hands of the people. Throughout the 1990s these demands were elaborated. Finally the broad coalition of Kenyan civil society organizations succeeded in December 2002 in electing a coalition government on the major demand that a new constitution transform the political order completely. It is this long struggle that is culminating in a mass rally on 3 July in Uhuru Park in Nairobi. Those attending the Uhuru Park rally will declare the peoples’ constitution the legal basis of the Kenyan state and demand that the legal process be honoured and Parliament adopt it as is, without amendment. The threatened political elite’s counter-rally seeks to divert attention from the democratic process by provoking tribalist fears and thus constructing itself as the defenders of “stability.” The organizers of the counter-rally are also trying to set up a confrontation so as portray the pro- constitution activists as violent, which will in turn legitimize state repression of those rallying at Uhuru Park.

The holding of two simultaneous rallies on the question of the constitution opens up the real possibility of political violence being directed against the proponents of the new constitution. Already rumours are swirling through Nairobi that anti-constitution forces are seeking to use hired thugs to disrupt the Uhuru Park rally. Prominent pro-constitution activists are also being attacked in the mainstream media for “leading efforts to undermine the government.” As the drama on 3 July unfolds it is imperative that activists across the world stand in solidarity with the social forces in Kenya struggling for a peoples’ constitution. In the following days global social justice activists may be called upon to bring international pressure to bear against any possibility of state repression. The draft constitution can be read in full at the Constitution of Kenya Review Commission website: ***

Please contact the following parties to express your support for the immediate enactment of the peoples’ constitution and your objection to any repression of the pro-democracy activists and organizations.

Kenya Debt Relief Network

Social Development Network

People Against Torture

President Mwai Kibaki fax no. 250264

Attorney General Amos Wako fax no. 316321 Kiraitu Murungi

Minister of Justice and Constitutional Affairs fax no. 316321 (same as AG office) P

For more info, see ANS website

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