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Kenya: Constitutional Reform
Kenya: Constitutional Reform
Date distributed (ymd): 981218
Document reposted by APIC
Region: East Africa
Issue Areas: +political/rights+ +US policy focus+
This posting contains excerpts from a September 1998 report on constitutional
reform in Kenya from the Robert F. Kennedy Memorial Center for Human Rights.
The report concludes that "the constitutional reform process promised
prior to December 1997 elections has yet to begin." For more recent
news on Kenya, see the Africa News web site
and the AfricaOnline web site
Holiday Special at APIC's Africa Web Bookshop.
plus music and more (www.africapolicy.org/books/cdvid.htm)!
ROBERT F. KENNEDY MEMORIAL CENTER FOR HUMAN RIGHTS
Moving Towards Constitutional Reform in Kenya?
The Robert F. Kennedy Memorial Center for Human Rights carries out programs
that support or complement the human rights work of the Robert F. Kennedy
Human Rights Award laureates and promote respect for human rights in their
countries. The RFK Human Rights Award is presented each year to individuals
who, at great risk, stand up to oppression in the nonviolent pursuit of
respect for human rights. ...
In 1988, Gibson Kamau Kuria, a leading human rights and constitutional
lawyer in Kenya, received the RFK Human Rights Award. In recent years,
he has played a key role in a broad, civil society-based constitutional
reform initiative. The Center has published several reports on Kenya. This
is the most recent.
This report was written by Keith Marshall Slack, the RFK Center's program
associate for Africa and Latin America, and edited by Margaret Popkin,
the Center's program director for Africa and Latin America, and by James
Silk, the Center's director. The RFK Center is grateful to several people
who reviewed drafts of the report and provided invaluable comments.
For more information:
Robert F. Kennedy Memorial Center for Human Rights,
1367 Connecticut Ave., NW, #200
Washington, DC 20036
Tel: 202-463-7575; Fax: 202-463-6606
[This background briefing paper] is an account and analysis of the Kenyan
constitutional reform process since the summer of 1997, focusing primarily
on the post-election period of January - August 1998.
The RFK Center joins the international community in expressing its great
shock and sadness over the bombing of the United States embassy in Nairobi
on August 7, 1998 and recognizes the tremendous toll inflicted on Kenyans.
The immediate aftermath of the tragedy engendered an unaccustomed sense
of national unity. The Center supports those in Kenyan civil society who
have urged the extension of this sentiment to tackling the country's political
Eight months after President Moi's election to another five-year term
as president of Kenya, the constitutional reform process promised prior
to the elections has yet to begin. After the elections, international attention
shifted away from Kenya, although few of the issues underlying last year's
unrest have been resolved. Politically motivated ethnic violence that appears
to be government sponsored continues to erupt, raising concerns about the
possibility of widespread violence if fundamental change does not occur.
The initiation of a serious process of constitutional reform would create
an unprecedented opportunity to develop democratic institutions and mechanisms
to protect the human rights of all Kenyans. Important aspects of the process
by which the constitution will be reformed are currently being discussed
by Kenyan parliamentarians and others. The international community can
play a key role by pressing the Kenyan government to follow through on
its commitment to a peaceful, broad-based and democratic constitutional
I. Background: Key Events in the Reform Process since July 1997
Following the events of July 7, 1997, when pro-reform rallies were held
throughout the country and 13 people were killed, security forces and paramilitary
thugs continued to repress reform demonstrations. ... Also in August, more
than 70 people were killed in politically motivated violence in the coastal
Prior to the August incidents, on July 17, 1997, after a year of violence
and increasing pressure from civil society groups and international donors
in the run-up to the elections, Kenyan President Moi acceded in principle
to demands for constitutional and legal reform. Until late September 1997,
however, President Moi and his KANU (Kenya African National Union) party
maintained that reforms could not be undertaken before the presidential
and parliamentary elections, which were to take place before the end of
Nevertheless, some statutory reforms were negotiated between the president
and the Inter-Party Parliamentary Group (IPPG), composed of members of
parliament from various parties, and were enacted into law in November.
The reforms called for repealing some colonial-era legislation used to
restrict freedom of association, expanding the composition of the Electoral
Commission, and establishing a framework for a comprehensive constitutional
review and reform process. The reforms did not, however, establish any
means to redress problems in voter registration procedures that left some
two to four million Kenyans disenfranchised; nor did they lessen the constitutional
powers of the executive.
This incomplete and belated reform process left the country ill prepared
for truly democratic elections. ... Presidential and parliamentary elections
were held December 29-30, 1997. To no one's surprise, President Moi emerged
victorious from the elections, which were chaotic and marred by irregularities.
The repressive pre-election environment and the lack of time for implementation
of the limited IPPG reforms helped guarantee the outcome of the elections.
II. Post-Election Period
A. Ethnic and Political Violence
Within weeks of the December 29 elections, ethnic violence broke out
in parts of the Rift Valley. The violence occurred between Kalenjin KANU
supporters and Kikuyu supporters of the opposition. ... Unlike previous
instances of Kalenjin violence directed towards Kikuyu, this time Kikuyu
organized a violent response. By mid-February, 70 people had been killed
and more than 1,500 displaced. Reverend Jesse Jackson, United States Special
Envoy for the Promotion of Democracy in Africa, visited the region in February
and succeeded in partially defusing the tension. Sporadic violence continued
in the following months, however, and created an extremely tense situation
with the possibility of an eruption of large-scale violence. The violence
was apparently provoked by factions within the government intent on dividing
the populace and retaining power. This situation is reminiscent of 1991,
when high-ranking members of the government were directly involved in fomenting
Politically motivated violence occurred again in May 1998, when two
opposition political meetings in Kwanza were broken up violently, one by
police and the other by armed raiders. ... Police harassment, including
detention and torture, of opposition and reform advocates has been described
as the government's "virtual policy" for squelching dissent and
enforcing conformity. The Kenya Human Rights Commission has documented
numerous such cases since the legalization of multiparty politics in 1991.
In early July 1998, church groups, with the participation of representatives
of political parties, civil society and the business community, convened
the National Peace Convention to address the ethnic violence issue. The
Convention adopted a resolution that called for the formation of a commission
of inquiry to examine the ethnic violence of 1991-92 and early 1998, the
drafting of a code of conduct for political parties, and the formation
of regional and local conflict resolution committees. President Moi was
invited to participate in the Convention but refused, stating that the
meeting was not necessary because the country was not at war. At the time
of the meeting, he did, however, establish a judicial commission of inquiry
to investigate the outbreaks of violence. Critics charged that the commission
formed by President Moi was designed to undercut the civil-society initiative
and would not be sufficiently independent of the government to perform
its duties adequately. ...
B. Constitutional Reform Process
Although the process of formal review of the constitution itself has
not yet begun, the Kenyan government at least gives the appearance of having
accepted the inevitability of such a process. ... How this process is carried
out will have a critical effect not only on its outcome, but also on its
success in contributing to building democratic institutions and lessening
the potential for ethnic violence. ...
The basic question is whether the process will be controlled by Parliament,
thus enabling the country's political elite to formulate the new constitution,
or popularly driven with parliamentary ratification, allowing substantive
participation by the broadest spectrum of Kenyan society. ...
Central to the constitutional reform debate is the Constitutional Review
Commission Act (CRC Act), part of the IPPG reforms adopted by Parliament
in November 1997. The CRC Act, which establishes the procedures and rules
of participation for the constitutional review process, has been the focal
point of contention between civil society groups and the government during
the post-election period. In January, civil and religious organizations
undertook a major campaign to demonstrate that the CRC Act was not a suitable
instrument for carrying out the reform process.
The CRC Act provided for a Constitutional Review Commission of 29 members
appointed by the president from a list submitted by interest groups. The
chairman of the commission also was to be appointed by the president. President
Moi called for ethnic groups to nominate commission members, a move that
was criticized by civil society groups such as the National Council of
Churches of Kenya (NCCK) as an attempt to further majimboism, or ethnic
Before the actual reform process can begin, participants in the constitutional
debate will need to resolve differences concerning the precise goals of
the review process. The government, which wants to change the status quo
as little as possible, has indicated that it supports reform of specific
articles of the current constitution. Civil society groups, on the other
hand, view the adoption of an entirely new constitution as critical to
making Kenyan society more just and democratic. ...
III. Role of International Donors
A. World Bank and IMF
In July 1997, the IMF suspended $220 million in loans and credits to
Kenya due to high-level governmental corruption and lack of accountability
for financial mismanagement. The World Bank took similar action, suspending
a $71.6 million structural adjustment credit. As of July 1998, the funds
remained suspended pending Kenyan government compliance with agreements
it reached with the international financial institutions in August 1997.
The Bank has stated, however, that it is likely to resume funding to Kenya
at some point during the 1998/99 fiscal year. The IMF has indicated it
will not restart its lending program before July 1999.
One of the Fund's stipulations for resuming its program in Kenya has
been the establishment of the Kenya Anti-Corruption Authority to investigate
high-level corruption. In late July 1998, controversy erupted when the
head of the authority, Harun Mwau, indicted four widely respected senior
treasury department officials on corruption charges, an action that may
have been orchestrated by some of President Moi's cronies irritated by
the officials' efforts to fight government graft. The charges were later
dropped and Moi, under international pressure, suspended Mwau from his
B. United States
U.S. policy towards the Moi government continues to be firm, with minimal
aid going to the country, most channeled through NGOs. The U.S. government
has stated its support for the constitutional reform process. Ambassador
Prudence Bushnell has spoken repeatedly in support of a broad-based process
of constitutional reform. Some sectors of civil society have expressed
concerns that the United States and other Western donors have begun to
give greater priority to the need for economic reforms than to the need
for reforms related to civil and political rights and have seemed inclined
to back away from the focus on civil society as the engine for change,
looking instead to Parliament. Such a change would ignore the critical
role civil society has played throughout this process.
In Washington, there has been relatively little focus on the issue.
The Administration is widely perceived as not placing sufficient emphasis
on pushing the reform process forward. During a July 1998 visit to Kenya,
U.S.Treasury Secretary Robert Rubin focused on economic issues, notably
corruption, in his public statements. The U.S. Congress has given even
less attention to the issue of constitutional reform.
The U.S. embassy drew strong criticism from some quarters in Kenya for
its seemingly insensitive handling of the aftermath of the August 7 bombing.
To many Kenyans, U.S. rescue efforts focused almost entirely on American
victims, rather than helping to free the scores of Kenyans trapped in the
rubble of the Ufundi Cooperative Building. Ambassador Bushnell appeared
on Kenyan television to address these concerns. Secretary of State Madeleine
Albright, after touring the site of the bombing, conceded that the United
States did not "act perfectly" following the tragedy but denied
allegations of callousness. She also pledged to seek funds to compensate
families of the victims. The bombing's ultimate effect on the United States'
ability to exert political influence on Kenya remains to be seen.
The RFK Center recognizes the importance of constitutional reform to
the future of a Kenyan state that is truly democratic and respects the
human rights of all its citizens. If Kenya is to avoid continued factional
antagonism and violence, it must devise a system of governance that enables
all Kenyans to participate equally and effectively in the life of the country.
A workable and just constitution with protections for all Kenyans and adequate
mechanisms to ensure accountability would provide the basis for such a
system. To achieve this goal, a constitution must be prepared with the
participation of all stakeholders in the process, in both government and
civil society, at national and local levels. Additionally, the process
must be carried out in an environment of trust and mutual respect. Continued
repression, arbitrary state action and ethnic violence are not conducive
to an open and fair process.
With these considerations in mind, the RFK Center urges the Kenyan government
- Allow all interested parties to participate meaningfully in the constitutional
reform process. The reform process must not become an empty parliamentary
exercise. All sectors of Kenyan society must have the opportunity to present
their views and influence the process. To this end, the government must
play a facilitative role rather than a controlling one. It should avoid
attempting to control the process by, inter alia, insisting on chairmanship
of the consultative forums and issuing ultimatums to other participants
in the process. The process should be democratic both in fact and in appearance.
- Cease its repression (through violence, criminal charges and detentions)
of reform advocates and those perceived as supporters of the political
- Stop fomenting or tolerating violence between ethnic groups for political
- Ensure that those responsible for political or ethnic violence are
brought to justice.
The RFK Center also recognizes the important contribution the international
community can make to the Kenyan constitutional reform process. The tragic
August 7 bombing must not be cause for prolonged diversion of the international
community's attention from the constitutional reform issue. There will,
of course, be a continuing need for sensitivity (particularly on the part
of the United States) and for appropriate assistance to the bombing victims.
But the international community should also encourage the catalytic effect
on the democratic reform process that the current - and likely transitory
- sense of national unity could produce. To this end, the Center urges
the international community to:
- Actively and consistently support an open and participatory reform
process. President Moi has responded to united and focused international
pressure in the past. Donor consensus about the reform process can be instrumental
in ensuring that the process is truly democratic. The United States can
play a key role in promoting a unified donor position.
- Arrange high-level visits to Kenya to express support for the constitutional
reform process. Such visits (those of U.S. special envoy Jesse Jackson,
for example) have been effective in influencing President Moi. They could
be employed now to emphasize international concern for an open and participatory
- Maintain conditionality on international financial institution loans
and credits until necessary changes are implemented to address corruption
and ensure accountability.
- Actively and consistently condemn the incitement of politically motivated
- Insist that (1) the newly created judicial inquiry commission carry
out a thorough examination of the politically motivated ethnic violence
that occurred in 1991-92 and early 1998 and (2) those the commission finds
responsible for the violence be held accountable in accordance with international
human rights standards.
- Call for constitutional reforms that will bring Kenya into accordance
with international human rights standards.
This material is being reposted for wider distribution by the Africa
Policy Information Center (APIC). APIC's primary objective is to widen
the policy debate in the United States around African issues and the U.S.
role in Africa, by concentrating on providing accessible policy-relevant
information and analysis usable by a wide range of groups and individuals.