The process of making a new constitution started 20 years ago, marked by violent street skirmishes, piecemeal amendments and failed reviews. In 2005 there was a referendum that changed the face of Kenyan politics and germinated seeds of the violence that engulfed the country after bungled elections in December 2007.
Despite the acrimony of those elections, the protagonists entered into a power-sharing arrangement. This political marriage was not given a long life, but has produced a new constitution that, if fully implemented, will radically change the face of Kenya.
The new constitution is a product of the deal brokered by former UN secretary general Kofi Annan and other eminent African personalities to address the root causes of the political violence that has accompanied elections in Kenya since multi-parties were introduced in 1991.
The new constitution has a number of features that revolutionalise governance in Kenya. While avoiding creating two centres of power with a position of executive prime minister, the new constitution ends the era of imperial presidency by checking and balancing executive powers through creating a senate, boosting legislative oversight powers and creating commissions to implement land policy and other national matters.
The constitution also increases the governing role of citizens by giving them power to recall poorly performing parliamentarians and participate directly in running local development projects.
With very extensive human rights protections, Kenyans can boast of being in the same league as South Africa, which is touted as having one of the best constitutions in the world in terms of human rights. The new Kenyan constitution has also dealt a fatal blow to impunity, exclusion and marginalisation of communities and groups, abuse and misuse of public resources and offices, as well as tribalism, nepotism, and other negative “isms” and schisms.
It should be noted that it was not smooth sailing all the way to August 4. Among the incidents that almost derailed the making of the new constitution were the illegal insertion of the words “national security” in the bill of rights, a grenade attack on a rally opposing the proposed constitution, and the deliberate use of misinterpretation, propaganda and lies by its opponents.
Why did the Kenyan peace deal work while Zimbabwe’s has hobbled? What lessons can Zimbabweans draw from Kenya to address the political crisis that continues to threaten to tear Zimbabwe apart?
After Kenyans had washed themselves in a bloodbath that claimed more than 1 100 lives and displaced over 300 000 people, the international community was relieved when President Mwai Kibaki and Orange Democratic Party (ODM) leader Raila Odinga agreed to form a coalition government. They also agreed to establish commissions looking into human rights violations and the 2007 presidential election results and procedures, and review the constitution to address the underlying causes of the violence, including land ownership, youth unemployment and regional poverty.
The speed with which this deal was reached and implemented has attracted attention from as far as the Philippines and as close as Zanzibar on how to manage coalitions and make constitutions that address economic and political problems. But the country that has paid keenest attention to Kenya’s coalition management and political transformation is Zimbabwe.
When the Kenyan deal was struck in February 2008, there were murmurs that a trend of trading democracy for stability in Africa was being established by allowing election losers to repudiate the results or incumbents to rig themselves into staying in power, and then negotiate “elite pacts” to share the spoils at the exclusion of the poor and marginalised. Among the countries seen as potential power-sharers were Tanzania/Zanzibar, Ghana, Uganda, Nigeria, Senegal, Ethiopia, Zambia and Malawi.
Nevertheless, the speedy resolution of the 2008 Kenyan political crisis has offered useful lessons on managing both conflicts and power-sharing coalitions. One could say that although the Kenyan response to election rigging — widespread and dramatic violence — shook the country to its senses to address long-standing historical grievances, poor governance, economic mismanagement and other issues, it came at a high price: thousands of dead and displaced people, more than US$1billion in property destruction, and the reversal of an impressive economic performance of 7,1% annual growth.
The Kenyan power-sharing government started on shaky ground. At the outset, it was dogged by controversies and challenges that kept its guarantors on the edges of their seats. For instance, there was constant bickering between and within the main political parties on matters such as patronage and privileged access to subsidised credits, foreign exchange allocations, import licences, public-sector jobs, protocol arrangements of the prime minister and vice president, handling sensitive issues such as immunity, critical policy initiatives, cabinet appointments, and a litany of other issues.
The Zimbabweans seemed to have learnt from the mistakes of Kenyans when they negotiated the Global Political Agreement (GPA) that formed a coalition government comprising President Robert Mugabe’s Zanu PF and the two MDCs of Morgan Tsvangirai and Arthur Mutambara. For instance, while the Kenya National Dialogue and Reconciliation (KNDR) pact did not have an implementation and monitoring committee, the GPA has a mechanism that is supposed to review it after 12 and 18 months. Ironically, the KNDR that depends on the goodwill of the two principals seem to have worked better than the GPA that has a joint monitoring committee.
Two and half years later, and despite widely being regarded as ill-defined, Kenya’s power-sharing deal has delivered more output than Zimbabwe’s more elaborate one. The KNDR has proved that it is not the elaborate enumeration and clarification of government powers that is most critical, but rather the personalities of the principals. Odinga, despite having residual powers delegated by Kibaki, used his personality to acquire and exercise more executive powers than those stipulated in the deal, and is generally regarded as a de facto co-president. On the other hand, Zimbabwean Prime Minister Tsvangirai seems to exist at the mercy of Mugabe, who continues to hog the executive powers.
To a great extent, the success of the From Page 15
Kenyan deal hinged on the relationship of the principal political players: Kibaki and Odinga. Besides having a good chemistry between them, they respect each other and have a history of working together in opposition to Moi and as allies in the post-Moi government. On the other hand, Mugabe and Tsvangirai have never worked together and deeply loathe each other.
Kibaki’s and Odinga’s personalities are neatly complementary. While Kibaki is a relaxed, patrician politician who shuns public appearances, Odinga is a charismatic crowd pleaser with strong grassroots support. Kibaki also likes to delegate and feels comfortable enough to share the limelight with Odinga, who possesses acute political instincts that Kibaki is aware of, not threatened by, and respects. In the case of Zimbabwe, Mugabe avidly despises Tsvangirai for his perceived lack of intellect and overreliance on foreign support.
Additionally, Kibaki is deeply conscious of his legacy which was blotted by the post-election violence, and did not object to Odinga doing the donkeywork to restore it. But Odinga also had an interest in seeing the deal succeed: building a track record on which to run in the 2012 presidential elections. Odinga’s ascent to the presidency will be a personal milestone: to obtain what eluded his father, who, despite being fondly called “the best president Kenya never had”, remained the doyen of opposition politics due to cultural stereotypes from some Kenyans about his ethnicity. In fact a joke doing the rounds in Kenya in 2007 was that Americans would elect a “Luo president” before Kenya did!
In Zimbabwe, Mugabe is not as constrained by term limits as Kibaki, who had to invest his remaining presidential days in crafting a legacy. With a twilight presidency, Mugabe is desperate to salvage his sunken political legacy.
When the violence broke out after Kibaki’s re-election, it engulfed most parts of the country and paralysed the region. Countries such as Uganda, Rwanda, Burundi, Eastern DRC and South Sudan, which rely on Kenya for access to the sea, felt the costs of the violence that halted the transportation system and almost shut down the regional economic engine.
The African Union (AU) swiftly dispatched its then chairman, Ghanaian President John Kufuor, on a fact-finding mission to the country. Thereafter, he recommended the formation of a group of eminent persons under the leadership of Annan. Annan, having recently retired, had time and saw an opportunity to spruce up his image in Africa that had been dented by criticism that he did little or nothing to stem the 1994 Rwanda genocide when he was UN undersecretary for peacekeeping.
Armed with an endorsement of regional organisations such as the East African Community and the Inter-governmental Authority on Development, an AU mandate, financial backing from the Western countries, technical expertise from the UN and civil society, and the support of the Kenyan people, the Annan-led team struck a peace deal within a month.
In conflict situations such as Zimbabwe and Sudan, the international community is divided in understanding the conflicts and addressing them, but in Kenya it spoke with one voice. While Kofi Annan, Graca Machel and Benjamin Mkapa worked full-time facilitating the Kenyan deal, two South African presidents have facilitated the solution to Zimbabwe’s political crisis on a part-time basis.
It remains to be seen whether other Africans will learn from Kenya’s experience. However, Kenya’s constitution-making and power-sharing success should not be regarded as the best blueprint or model of successful peacemaking, as all countries go through different experiences that influence the deals reached and how they are implemented. It is not easy to replicate the Kenyan experience, but it is useful to keep it in mind as a reference.
Dr Wafula Wokumu is a research fellow with the Institute for Security Studies’ African Conflict Prevention Programme in Pretoria. — the-african.org.