Tag Archives: constitutional reform

Kenyan Constitution and the Rule of Law

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Most people that I have talked to expect the new Kenyan constitution to pass in the upcoming August referendum in spite of opposition from several church groups and politicians. This is also the view of the US-based consultancy STRATFOR in a new report on Kenya. The Synovate poll taken in late April showed a heavy balance in favor of a “Yes” vote, including among those who had disagreements with some specific points in the draft.

Looking ahead, the question may become, how much will the changes in the law really matter?

The Brookings Institution published an interesting study by Daniel Kaufmann  earlier this year criticizing the tendency to focus too much on the de jure rules of law rather than the de facto workings experienced in practice, citing the current situations in Kenya and the U.S. as examples:

First, consider Kenya in 2007. The main aid donors, led by the World Bank and the United Kingdom’s aid agency, DfID, tended to praise the governance reform efforts of the Kenyan authorities, including those on legal initiatives and anti-corruption.[1] Subsequently, in the run-up to the presidential elections, these top donors, also including the United States, flooded the Kenyan government with funds. Kenya’s government was even awarded a special international prize recognizing its good governance efforts.[2]

Elections were held a few short days after the last 2007 World Bank press release in Kenya, which announced approval of funding yet another project for the government.[3] The elections were widely regarded by external organizations, such as the EU, and by many Kenyans[4] as rigged, in what was the culmination of years of systemic political corruption that infiltrated key legal and judicial institutions. Civil strife erupted and the full extent of the breakdown of law and order was exposed at a dire cost—thousands of lives were lost and vast socio-economic damages were inflicted.[5] Yet, the main aid donors appeared to be shocked that such corruption, electoral mismanagement, and turmoil could take place in Kenya.[6]

Around the same time and half the globe away, some rule-of-law institutions were being quietly undermined inside the world’s superpower: the United States. In April 2004, amidst euphoric financial sector growth, a meeting was held in the basement of the Securities and Exchange Commission (SEC).[7] The top executives of the main Wall Street investment banks gathered to weigh in on proposed SEC regulations that would relax restrictions on their investment houses.[8] A scant 55 minutes later, the investment bankers emerged with SEC approval; the new regulations exempted the investment groups from the leverage restrictions that apply to commercial banks, allowing the banks to massively expand their debt.[9]

In return for the green light to an enormous expansion of indebtedness, the investment banks agreed that the SEC would have more oversight over them, for which a special unit would be formed.[10] In practice, the oversight did not take place. In fact, the head of the SEC never created or staffed any such oversight unit.[11] The resulting financial debacle that followed is now well known. What is insufficiently appreciated is the fact that various manifestations of “soft” and “hard” forms of regulatory and legal capture by the elite financials were a factor leading to the crisis.[12]

There are many salutary features in the draft constitution, on paper, but the real question will be making them work in practice. Rule of law will crucially depend on reform of the police, consistently rated as among Kenya’s most corrupt institutions, as well as better access and more effectiveness in the court system.

The outstanding issue of prosecutions for post-election violence is a good immediate test. ICC prosecutor Luis Moreno-Ocampo is in Kenya now, and is said to have informed the government that he will seek to bring two cases against three key individuals each, in the Hague in the September-October timeframe. The government continues to pledge cooperation, but continues not to take specific steps to effectuate the law passed by Parliament to provide for witness protection.

Kenyan Draft Constitution to be published by AG Thursday for referendum

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Read it for yourself here.

My take is that Kenyan voters can make their own choice. That’s what this is supposed to be about. Personally I think the process could have been better and the draft could have been better–and avoided unnecessary ambiguity and controversy–but that does not mean, to me, that it does not contain some very important improvements in the governance and political process for Kenya. Regardless, a fair vote in which everyone has the opportunity to vote, and have that vote accurately counted, is the first and indispensable step toward healing from the 2008 violence and moving toward a restoration of bona fide democracy.

American Center for Law and Justice opens Nairobi branch–campaigning against draft Constitution

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Kevin J. Kelley reports in the Sunday Nation that Jay Sekulow of the American Center for Law and Justice–typically thought of as a “Christian Right” group, based in Washington and said to be founded by Pat Robertson–has said that “tens of thousands of dollars” are being spent through a new Nairobi affiliate organization, the East Africa Centre for Law and Justice, to oppose the proposed new constitution on the basis that it allegedly would allow “abortion on demand”.

The ACLJ is known primarily for legal work to defend Christian-related groups on religious liberty issues but according to its website also has an official position on abortion: “The ACLJ is committed to the sanctity of life and opposes abortion in all circumstances”.

Robertson’s 700 Club has early morning airtime on the Kenya Broadcasting Corporation. Kelley notes Robertson’s recent commentary on an alleged Haitian pre-independence “pact with the Devil” in relation to the January earthquake. I will say that nothing that I saw on the websites of the ACLJ (www.aclj.org) or the EACLJ (www.eaclj.org) mentions Robertson.

As for background of how the EACLJ came to be established, the ALCJ’s head of global outreach, Jordan Sekulow (Jay’s son) wrote last December 26 that he was flying to Paris to meet his mother and that the two of them would then travel to do work in support of offices in Zimbabwe and Kenya. In regard to Kenya he says that “a good friend and pastor from Iowa, whom I met during the Iowa caucuses introduced me to a well-known Bishop from Kenya who was interested in opening an operation similar to ACLJ-USA in Kenya . . . The Bishop and his fellow pastors have decided to speak out against the constitutionalization of the Sharia Courts and have called on the ACLJ to travel to Kenya and set up a full-time legal and government affairs operation where we’ll work with church leaders on this crucial issue.”

Draft Constitution going to Referendum without amendments

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Not surprisingly, Parliament reached agreement on and passed none of the proposed amendments to the draft constitution during the days provided by the authorizing legislation, so the current draft will go to a vote as is. It would seem that many members are significantly disappointed in some or many respects in the details of the document.

How hard will the various major players and prospective presidential candidates work to support passage? Which will work against it–publicly or privately?

Will the voter registration be comprehensive and credible? Will the votes be counted fairly? What will be the involvement of donors in the campaign?

Kenyan Politics

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In the final days of review, Kenyan MPs remain divided as to amendments to the current draft constitution. “MPs list their wishes as debate rages”.

Remembering: Exhibit of photographs of Kenyan post-election violence shown at Eldoret (sponsored by USAID and UNDP)

The Vice Chair of the Truth, Justice and Reconciliation Commission has stepped down from her position, after calling for the Chairman, Bethuel Kiplagat to resign. She will continue as a Commission member.

The Indian Ocean Newsletter reports that Kenya’s Blue Shield Insurance Company, owned by the Kenyatta family, is subject to a demand by the Association on Insurance Brokers of Kenya to the Insurance Regulatory Authority (IRA) to appoint a liquidator due to its failure to pay claims. “The IRA position is clearly very delicate in this affair, since this body depends on the ministry of finance, headed by [Uhuru] Kenyatta, who is the half brother of the late Muigai Kenyatta whose widow Beth Muigai chairs the board of Blue Shield Insurance.”

Status of Reforms and Recounts in Kenya

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We are now down to the last four days of debate in the Kenyan Parliament on a draft constitution.  The MPs appear fractured along the lines of competition for 2012 (party and factional splits) and on a regional/ethnic basis over issues of sub-national governance structures.  Changes to the current Committee of Experts draft require a 2/3 approval which appears to be a difficult hurdle.

If Parliament is unable to reach a broad consensus on changes, as appears likely, the referendum will go forward with the draft “as is”.  This will mean that there will be a lot of groups and interests that are not really happy with it, including some who have pledged or threatened opposition.  This will call everyone’s bluff at some level.

My guess would be that the current draft would be perceived by the voting public as enough of an improvement–and symbolically important enough in the post-2007 environment–that it will have broad support.  At the end of the day, I suspect it would be mostly people currently sitting in government in some form who would prefer the status quo.  It may well be that we will have behind the scenes efforts toward defeating the referendum from some politicians that offer a lukewarm endorsement in public.  Regardless, I suspect Kenyan voters will have a heightened resistance to being manipulated.

On other issues, Capital FM reports that a group of religious leader presented a memorandum to Kofi Annan during his present visit to Nairobi that seems to summarize well:

“We are concerned that political leaders, on whose shoulders the burden of implementing the reform agenda was placed, have shifted their focus to the 2012 general election,” the statement read.

They continued to say: “The situation is made complex by the fact that one principal is retiring while the other is firmly in the 2012 presidential race. This has made synergy remote since succession politics rather than national wellbeing is the overriding consideration in their minds.”

The leaders also told Mr Annan that very little effort had been made to address underlying issues classified as the root causes of the 2007/2008 post election violence.

They rated the government’s effort almost at zero in dealing with poverty, unemployment and regional inequalities which are some of the challenges that were identified as primary causes of the violence.

According to the leaders, the government was also not doing enough to realise land reforms despite the Cabinet passing a new land policy, “This is quite sad considering that land ownership and use was one of the causes of the post election violence.”

But they appreciated that a lot had been achieved in constitutional reforms though they expressed worries that political, ethnic and religious interests had almost overshadowed the national concerns.

They also called for consensus to ensure that the draft enjoys majority support when it will be subjected to a referendum.

On the issue of prosecutions from the post-election violence, the Justice Minister says the ICC is acting too slowly (like Kenyan courts) to approve Ocampo’s request to authorize a formal investigation. He says that a new effort to pass a “local tribunal” is first up following the consideration of the constitution. (Of course, the lack of finality/clarity about the potential for local prosecutions may be a primary issue restraining the ICC.)

Voter registration is underway. There are complaints about the slowness of issuance of national ID cards to potential new voters in some areas, but overall no surprising controversies that I am aware of yet.

Judicially supervised recounts continue in parliamentary challenges from the 2007 election. They are recounting the yellow ballots for parliamentary candidates. Hmm. Seems like it would be interesting to count the pink ballots for president, too. This is what the EU called for when the election results were disputed–but was dismissed as not possible by the US through Ambassador Ranneberger. Would have also been interesting for the Kreigler Commission to have done some sample recounts also. I’ll develop this further in subsequent posts . . . .

Visiting US Diplomat speaks on corruption, prosecution of post-election violence

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The Standard covers Deputy Assistant Secretary of State Karl Wykoff:

The US continued to pile pressure on the Coalition Government for urgency in the implementation of key reforms and decisive action against corruption.
. . . .
Speaking just a day after the second anniversary of the signing of the National Accord, Mr Wyckoff said: “It is important to note that some significant progress has been made-particularly with respect to the constitutional review process and the interim electoral commission, but much more must be done to implement reforms with a much greater sense of urgency.”
. . . .
Wyckoff also reminded Kenya that suspects of post-election violence must be held accountable if Kenya is to avert future occurrence of skirmishes.

“The culture of impunity is critical…. it is critical that perpetrators of the violence be brought to justice,” said Wyckoff.

He further called on the Government to be proactive in protection of witnesses of post-election chaos.
. . . .
Wyckoff, who has been in the region for two weeks conducting extensive consultations in Nairobi and Addis Ababa, Ethiopia, on a wide range of issues, called on the coalition partners to hold a referendum that would not disintegrate the people.

“We urge the coalition leaders to work together to support a new draft constitution and to work towards the holding of a timely referendum, which will help unite the country,” he said.

Preparing for 2012–I. The Constitution and the Presidency (the first installment in an occasional series)

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We approach the halfway mark in the second Kibaki administration and watch as Kenyan politicians grapple with how to position themselves most advantageously for the next election, and as Kenyan wananchi hope for any opening toward the restoration of the sense of hope and empowerment experienced in the 2002 election. Much of the focus right now is on the process by which the members of the political elite mediate among themselves what to offer to the public for vote in a referendum on a new constitution.

Obviously this is a high stakes endeavor involving a degree of risk that Kenyan politicians do not normally indulge–which is why Kenyans continue to have a constitution that no one admits to liking and everyone promises to change when they are running for office. The first Kibaki administration lost its moment of public goodwill over the failure to accept reforms limiting presidential power. This created an opening for a new opposition center of gravity with the “Orange Democratic Movement” and ended the opportunity for Kibaki to win a majority in seeking re-election in 2007. With the old constitution, however, Kibaki did not need a majority to keep power.

To my way of thinking, it may be a distraction to focus too much right now on most of the intricate issues of law presented in the Committee of Experts draft constitution, in that the reality is that Kenya is simply not at a point where the law as written is such an important determinate of the rules of everyday life either for citizens or leaders. To me, the big picture issues of how Kenya will be governed in the future, if a new constitution is approved, are (1) how the president is chosen and (2) devolution versus centralization.

Presidential Elections to Date and the Current Pursuit of 2012

The political class seems to have abandoned the idea of having a Prime Minister which has been seen as a central point of contention in the past. To me this reflects the final denouement of the notion of the second Kibaki administration as being a “coalition government” involving “power sharing” between a Kibaki-led PNU establishment and an Odinga-led opposition.

In a nutshell, Kibaki in seeking a second term lost around 20-points off his 2002 majority, but the ECK which he appointed declared him to have won a plurality and to have met the thresholds of 25% in each of five provinces. Almost all outside observers have concluded that the election was stolen and surveys indicated that 75% of Kenyans believed so as well. Kibaki won a majority in the 2002 campaign and lost it in his performance in office, but retained power.

Since Moi conceded to allow formal “multi-partyism” in the wake of the end of the Cold War Kenya has had four elections. In three, an incumbent president sought re-election, failed to get a majority of the vote, but was declared the winner with a plurality, followed by significant violence. This was the pattern of 1992, 1997 and 2007. In 2002 there was no incumbent due to a constitutional reform imposing a two-term limit–a “macro level” legal reform that was ultimately respected. In this unique situation, the two leading candidates to succeed the president were both key members of the elite political establishment, and simultaneously key members of the Kikuyu tribal and business elite. Under the circumstances, the obvious landslide winner was the candidate positioned as “the opposition” while also being, in fact, part of the core elite.

How much alike were the candidates in 2002? Let’s look at some reportage from today’s Sunday Nation:

Mr Kibaki’s apparent endorsement of Mr Kenyatta’s manoeuvres in PNU is hardly surprising.

Mr Kenyatta and Mr Kibaki share long-standing family ties. It is said that it was Mr Kibaki who suggested to Kenya’s first president, Jomo Kenyatta, that he should name his son Uhuru (freedom) to mark the attainment of independence in 1963.

The two families, whose private residences are barely 500 metres apart in the upmarket Muthaiga residential area in Nairobi, also share deep political connections.

George Muhoho, an uncle of the younger Kenyatta, was one of the founders of President Kibaki’s Democratic Party of Kenya.

While Mr Kenyatta has unquestionably taken up the role of the main man within PNU . . .

While 2002 might have seemed at first to be a breakthrough election representing a fundamental step up to a higher level of democratic development–rather than something of a bait-and-switch–by 2007 we were back to a situation where an incumbent who could not command a majority was seeking re-election.

Given the History, Why Not Create a Strong Prime Minister?

I think it would make sense for Kenyans to chose a presidential rather than parliamentary system, because a parliamentary system is based on functioning political parties. Having a “prime minister” without a party or parties in government and a party or parties in opposition in the parliament doesn’t make sense to me. Kibaki effectively gutted the nascent existing political parties as president by being elected to parliament and as president as the leader of the Democratic Party, but not using DP as a tool of governance nor leaving it, and disdaining to chose or form another party to run for re-election. Ultimately “PNU” was slapped together a the last minute, neither quite a party, nor quite a coalition–and was little more or less than the Kibaki re-election apparatus at the time.

Because Kibaki did not lead an organized party, after the election the claims on his loyalty were personal and tribal–he was not going to negotiate anything to do with the presidency–that was off the table–but spoils could be shared as he deemed necessary. Thus ultimately, he was able to cut a deal with Odinga without having to answer to a party. The settlement was against the wishes of many of his key partisans, including at least some of the PNU-side negotiators in the Kofi Annan-led talks which had in fact collapsed before the last-minute deal between “the principals”. After all, he was giving away jobs and titles that his second tier supporters wanted, rather than what he needed for himself.

ODM is likewise unlikely to survive the run-up to the next election. ODM had a certain level of potential as a party. It was strengthened as a party, I would argue, when Kibaki’s claim on Uhuru led Uhuru to pull KANU out of the opposition coalition. Uhuru couldn’t buck Kibaki and keep his seat in parliament and being leader of KANU was not enough for him without the seat. The clarity of the formal split with KANU left ODM in a position to develop as a party rather than a coalition. It survived the disruption of Kalonzo’s departure. It had a national leader in Odinga who even in the questionable ECK results won the vote in the entirety of the country other than Central Province by 1.5 million votes. Post-election however, its leader Odinga has no real power as Prime Minister to impose party discipline and Kenneth Marende whom ODM elected as Speaker its in greatest feat as a party holds an office that is treated in the strange current system as nonpartisan.

The Remaining Reform is the Requirement that the President Obtain a National Majority

Given the impracticality of expecting more from parliament or a prime minister without a level of development of political parties that simply has not transpired in these initial years of Kenya’s political opening, the reform that matters in my opinion, is to require that a presidential candidate obtain a national absolute majority. This would be a real change in and of itself, and could be one of those fundamental basics like the two-term limit that are actually honored and matter over time.

Morning Update–Constitutional Review

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The 30 day period for public comment on the proposed new constitution has now run.  Here are some quotes from yesterday’s editorial in Nairobi’s Business Daily Africa entitled “Save the Review”:

“When the Constitution writing project began in the early 1990s the majority of Kenyans were agreed that power needed to be dispersed and checked by the various arms of government.

But going by the polarisation that has emerged as the deadline for submission by the public of views on the draft closed on Wednesday, this point appears to be escaping the memory of many.

Once again, the process appears to be headed for a stalemate thanks to the short-term interests of the main actors on the political arena.

Yet the jostling for power aside, it must be said that the constitution making project has merely become captive to a lack of leadership.”

It’s pretty basic that the constitutional process has to be about the country not the current crop of individual politicians, but it doesn’t seem there is not much of a source of strong leadership from outside politics and no willingness to lead on this basis from among the politicians.  It would seem that a lot of the burden will rest on civil society if the process is going to lead to a significantly improved new constitution soon.

Kenyan Constitutional Reform and Michel Martin interview with Johnnie Carson

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NPR’s Michel Martin interviewed Obama’s Asst. Secretary of State for Africa last week on “Tell Me More”–transcript is up on NPR.org.

Interesting that Martin starts with Kenya and the second anniversary of the election violence.  Carson is very specific that Kenya needs a new constitution and that it needs to include “a sharing of power” between “the” president and “the” prime minister, devolution of power to the provinces, and “a land reform bill”.  This raises the question of what the US role might be in moving the constitutional negotiation in that direction–and why.

Also significant is that Carson specifies the new constitution in the context of increased “goodwill and cooperation” among the current Kenyan political players.  Nothing said about impunity, the ICC, justice, corruption, et al.

Personally, I am more interested in “power sharing” between branches of government than in having a shared executive role, which in my view doesn’t do much for accountability.  I’m old enough to remember (from junior high school days) the brief flirtation with the idea of a Ford and Reagan “co-presidency” at the Republican Party convention.  Seems like everyone ended up agreeing it just wasn’t workable here.  It’s hard to make this succeed as a compromise deal negotiated between two individuals; not sure it isn’t harder to come up with a way to structure it systemically as a permanent choice in the constitution.

Land reform is crucial, of course, and the problem gets worse and worse as the population grows at a 2.7% clip–but the present Kenyan instutitions and the present crop of political leaders are, to my way of thinking, “no how, no way” ready, willing or able to tackle this until other reforms are effectuated.  Start by admitting that the problems are, in fact, unfixable and have no good solutions.  There is a price to be paid for all those years of corruption, venality and tribalism.  I wonder what the United States and other Western countries were doing about this back when the Kenyan population was 20 million instead of 40 million and the options were better? 

Regardless of any of the policy preferences of any of us in the US, however, I do completely agree that Kenyans need the opportunity to have the constitutional reform process move forward at pace, and go to vote in a referendum on the final product.  It seems to me that Kenyans are pretty well aware at this point that, in general, the political leadership does not have their best interests all that much in mind–giving the public the opportunity to have a direct say, for the first time since December 27, 2007 is crucial to restoring functional democracy.