The Battle Over Kenya's New Constitution

Rose Angiro has a favorite proverb: when two bulls fight, it is only the grass that suffers. Angiro, a maize farmer in western Kenya, is talking about Kenya's politicians and church leaders, who are locked in battle over a draft constitution that Kenya's 44 million people will vote on in August. The debate over the constitution suddenly became much more than an exercise in civics in mid-June, when grenades exploded at a rally organized by churches against the new constitution. Six people were killed in the blasts and the stampede that followed.

Early last week, police arrested three members of Parliament who oppose the new constitution on accusations of hate speech. One of them, an assistant minister of roads, allegedly told a rally that members of the Kikuyu ethnic group "should prepare to leave Rift Valley en masse" if the constitution passes. President Mwai Kibaki last week suspended the assistant minister, who denies the charges. The Kikuyus are the largest of Kenya's 42 ethnic groups, and the Rift Valley is the part of western Kenya dominated by smaller groups. It was exactly that sort of language that led to the 2008 violence, which saw 1,300 people killed and tens of thousands of Kikuyus driven out of the Rift Valley.

Much of the debate has focused on church groups' opposition to two things. One is the Muslim courts that rule in matters of marriage, divorce and inheritance for believers. They are also enshrined in both the current constitution and the new draft, leading to opposition from Christian church groups playing on the fears of greater Muslim dominance in Kenya. The other hot issue is that the new version of the constitution explicitly states that abortion is legal in cases where the life of the mother is endangered, a proviso that currently exists only in the country's legal code. Church groups fear the clause could open the door to wider abortions. They have been encouraged by some American Evangelical groups, including the American Center for Law and Justice (ACLJ), an antiabortion group founded by Pat Robertson. The ACLJ's international director, Jordan Sekulow, told the Associated Press earlier this year that the measure "opens the door to abortion on demand, which is why Christian organizations that are pro-life are so opposed to that provision."

For their part, church leaders have shown remarkably little restraint in pointing out who they think is to blame for the violence. Just after the investigation into the bomb blasts got under way, the National Council of Churches of Kenya issued a statement saying it had "no doubt that the government, either directly or indirectly, had a hand in this attack."

Kenyans who support the rewritten constitution blame entrenched leaders who have profited handsomely from Kenya's corrupt status quo and don't really want things to change all that much. "You're talking about very large landowners, you're talking about people who are comfortable with the current arrangements of power," says Muthoni Wanyeki, executive director of the Kenya Human Rights Commission. "There is a lot of fear among those associated with old money and those who have maintained power in this country." Kenya's next presidential elections take place in 2012, and politicians have already begun jockeying for position ahead of the vote.

Kenyans generally agree that the proposed constitution, while not perfect, is a huge improvement over the old constitution, a colonial-era document that gives almost total power to the President and leaves out any mention that the government serves at the behest of Kenya's citizens. In the revamped version, the President's powers are greatly reduced, the legislative and judiciary branches are beefed up and explicit rules are spelled out against corruption, a huge problem in Kenya. "I have certain issues with the draft, but I also know I am one out of 40 million and a draft that will govern 40 million cannot just suit the needs of one man, or 10 or 1 million," says Ben Sihanya, a constitutional-law professor at the University of Nairobi Law School. "There must be a lot of compromise, and give and take. Looking at it on the whole, I think it's a pretty good compromise document."

The allegations of hate speech are disturbing because they suggest that some Kenyan politicians did not take all the talk of national reconciliation to heart after the violence of 2008, which also forced hundreds of thousands to flee their homes. Leaders still exploit ethnicity for political gain even though such talk was so obviously a big reason the killing got so bad last time. Even promises from the prosecutor of the International Criminal Court to hold the perpetrators accountable seem to have had little quieting effect.

Given that recent polls show the constitution has the support of nearly 60% of Kenyans, it was hard not to see the bomb blasts — and the alleged hate speech — as things meant to keep people away from the polls. That plays on people's residual fears from the postelection violence. Some believe that not voting will protect them from any potential fallout. "It's high time our politicians stop struggling," Angiro says of the controversy over the constitutional referendum. "If the politicians can't assure us it will be peaceful, I don't think that the majority of us will go vote."