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This document is from the archive of the Africa Policy E-Journal, published by the Africa Policy Information Center (APIC) from 1995 to 2001 and by Africa Action from 2001 to 2003. APIC was merged into Africa Action in 2001. Please note that many outdated links in this archived document may not work.

Kenya: Constitutional Reform

Kenya: Constitutional Reform
Date distributed (ymd): 981218
Document reposted by APIC

+++++++++++++++++++++Document Profile+++++++++++++++++++++

Region: East Africa
Issue Areas: +political/rights+ +US policy focus+
Summary Contents:
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
(http://www.africanews.org/east/kenya) and the AfricaOnline web site
(http://www.africaonline.co.ke/AfricaOnline/covernews.html).

+++++++++++++++++end profile++++++++++++++++++++++++++++++

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ROBERT F. KENNEDY MEMORIAL CENTER FOR HUMAN RIGHTS

Moving Towards Constitutional Reform in Kenya?

An Update

September 1998

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
E-mail: hrcenter@rfkmemorial.org.


[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 problems.


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 reform process.

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 region.

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 the year.

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 ethnic violence.

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 federalism. ...

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 post.

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.

IV. Recommendations

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 to:

  1. 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.
  2. Cease its repression (through violence, criminal charges and detentions) of reform advocates and those perceived as supporters of the political opposition.
  3. Stop fomenting or tolerating violence between ethnic groups for political ends.
  4. 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:

  1. 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.
  2. 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 reform process.
  3. Maintain conditionality on international financial institution loans and credits until necessary changes are implemented to address corruption and ensure accountability.
  4. Actively and consistently condemn the incitement of politically motivated ethnic violence.
  5. 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.
  6. 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.


URL for this file: http://www.africafocus.org/docs98/ken9812.php