Will Kenya's Constitutional Vote Lead to Violence?

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Noor Khamis / Reuters

A supporter holds a vuvuzela and a paper sign during a "YES Vote" rally in Nairobi, Kenya.

On Wednesday Kenyans will vote on a new constitution that proposes to take on the corruption, tribalism and impunity that have bedeviled this would-be powerhouse of East Africa since its independence in 1963. But these are anxious days for ordinary Kenyans, despite the peace songs blaring on radio stations, assurances of ample security from the government and even a peace caravan complete with camels. Most people are still shell-shocked after the last national vote, a flawed 2007 poll that led to violence which left 1,300 dead and hundreds of thousands homeless.

Jamia Abdulrahim remembers all too well the weeks when frustrated supporters of opposition candidate Raila Odinga, now the Prime Minister, wrought havoc in the slum of Kibera where she lives. Amid the fires and looting, the children of one of her neighbors were burnt to death. Members of Abdulrahim's family have not returned to Kibera to this day. Now, as members of parliament and politicians horse-traded and calculated their next moves, the people in Kibera worry. "For a long time, so many of the MP's were silent," Abdulrahim says. "When we saw that most of the MPs were voting for 'yes' [on the constitution] that was when I slept. Our leaders are our shadows. They reflect whatever we are thinking, whatever we are doing. If they are divided Kenya goes nowhere."

With the country's two principal political players — Odinga and his rival, President Mwai Kibaik — and the majority of Parliament behind it, the constitution is expected to pass. If so, it will signal a new era for Kenya, throwing off a constitution considered by many to be a musty authoritarian legacy of colonial days. The new law would disburse the king-like powers of the presidential office, divide the legislature into two houses, and establish the independence of the country's executive, legislative and judiciary branches. A progressive bill of rights will be enacted as will social and economic freedoms.

"Devolution will be bringing the government to the people," says Jane Kiragu, a prominent human rights lawyer and activist here. "It will bring resources to the people and give them control over their own resources. I think these are new structures that will address insecurity, reduce the basis for corruption, create more employment and ultimately a more prosperous country, not just for us but for generations to come."

In any other place these might be earthshaking changes, but in traditionalist-minded Kenya, the most controversial issue is land. The new law promises to right the wrongs of colonial administrators and more recent political cronyism that have so warped the distribution of land in this still largely agricultural country. A motley assortment of land barons, including former President Daniel Arap Moi and his allies, multinationals with large land holdings and even the Catholic Church, have joined the "No" campaign.

Visiting a tea estate on land in the North Rift Valley, a young lawyer campaigning for the constitution said that employees had been told not to speak in favor of the constitution. "Management was targeting people from outside and saying that the majority of people in Naandi hills were for 'No' and that, if they were for 'Yes,' they should keep quiet," claims George Tarus, who grew up in the Naandi Hills. "The Naandi were deprived of land way back in 1905 for tea." Most current owners of the land in the area were assigned their rights by post-colonial Kenya, based on distributions imposed by the country's previous British rulers.

The Catholic Archdiocese of Nairobi and Anglican churches of Kenya (as well as some mosques) were mentioned as alleged beneficiaries of illegal land transfers in a 2004 report by the Ndung'u Commission, which was set up to look into instances of the illegal allocation of public land. But it is the abortion clause that has the churches up in arms against the proposed constitution. The draft would allow a woman to have an abortion if a medical professional judges her life to be in danger. Catholic and Anglican prelates believe the provision would allow for abortion to be dispensed too liberally. But lawyers say that the law is as strongly against abortion as it can be while remaining in line with international human rights treaties, which Kenya has signed.

Several politicians from the "No" campaign have been jailed for alleged hate speech. One had supposedly said that members of the Kikuyu tribe "should prepare to leave Rift Valley en masse" if the constitution passed. Last month, the Nation newspaper reported the arrests of members of a group that had allegedly been circulating leaflets warning of war if the constitution passed.

In spite of the rhetoric and tactics of some "No" proponents, two factors may keep emotions and tensions at bay. Even if the constitution passes, the prospects for dramatic change will be slow; furthermore, politicians need to keep their reputations unsullied in the run-up to national elections in 2012. "This is a long process and I don't think that there is going to be any immediate spark to violence if 'Yes' wins." says Ben Rawlence, a researcher with Human Rights Watch's Africa Division. "I think 2012 is a bigger game; this is part of the run up and I don't think anyone is going to resort to violence. I think they've seen the cost of that."

Still, a strong vein of anti-Muslim sentiment has been cultivated by "No" leaders, who have stoked fears that, since the proposed constitution allows Islamic courts to handle family disputes among consenting Muslims, an Islamic take-over of the country may be in the works. Such fears have mixed potently with the issue of property rights. In the Nairobi slum of Mathare, eerie echoes of 2008 can be heard. Two casual laborers looked over their shoulders as they spoke with TIME at a cafe in the capital as they discussed their opposition to the constitution. The two say they are opposed to the proposed constitution because they claimed it would allow wealthy Muslims to take over Mathare Valley, squeezing out renters like themselves. "The only thing that we have to do is arm ourselves with machetes to protect our land," one young man says. "There are those among us who know how to build petrol bombs. We are not even frightened of police. We Mathare people have nothing to lose."