• Electoral reform, which was not addressed in the Constitution, would ultimately be the key to resolving the ethnic calculus that has so divided the nation.
• It remains the elephant in the room to this day, with Kenyans having witnessed each presidential election since passage of the Constitution being disputed.
We all recall rejoicing on August 27, 2010, when President Mwai Kibaki signed the new Constitution, with then Prime Minister Raila Odinga by his side.
Passage of the 2010 Constitution was long overdue, for sure, as Kenya’s politicians led by Raila and others, including civil society advocates, struggled for nearly a quarter century to secure a new supreme law.
At the core of this constitutional reform struggle was a strong desire to curb or otherwise reduce the powers wielded by the Executive. They were getting increasingly expansive and dictatorial, with the clear emergence of an imperial presidency by the end of Daniel Moi’s era.
However, even before the ink dried on the new document, many, including this writer, immediately saw flaws and expressed concerns that the new Constitution may not be all that it was heralded to be — much as it was a praised by all leading politicians, civil society and virtually everyone.
As one leading think tank put it, it was far from certain that the new Constitution would fundamentally change the ethnic rivalries endemic to the country’s political life or change governance for the better.
The think tank, Center for Strategic and International Studies, identified three areas they and others had doubts about in the new Constitution.
These were: first, whether the new constitutional framework which emphasised the strict separation of powers was best suited for the realities of Kenyan political life.
Second, electoral reform, which was not addressed in the new Constitution, would ultimately be the key to resolving the ethnic calculus that has so divided the nation and third, the need to transform the country’s political culture and create a climate of free and open debate on policy issues.
As to the first concern, the strict separation of powers concept is clearly not suitable for the realities of Kenyan life. Yes, we had the Judiciary nullify the 2017 presidential election in the historic decision that signalled for the first time the courts’ independence. However, that cannot be confused with the totality of checks and balances, which is still lacking.
Conversely, stripping the President of much of his powers in the name of abolishing an imperial presidency left one that’s nearly impotent in as far as fully equipping the President to perform in a robust and healthy manner to produce desirable results.
It would, therefore, seem this is one item the new referendum must address.
The electoral reform or the absence of it in the 2010 Constitution was not only rightly identified by CIS as a major concern. It, however, remains the elephant in the room to this day, with Kenyans having witnessed each presidential election since passage of the Constitution being disputed and, in each case, evidence of glaring theft leading to the nullification of one of the elections, as even the Supreme Court said ‘Enough’!
Many people believe Raila Odinga won in 2007 but was rigged out and has been featured in each disputed election since as the most affected victim of rigging.
Fixing the electoral system is and must be a priority in the new referendum, which begs the question of how.
For one, let’s abolish this so-called independent electoral commission. Instead, let’s have each county handle its own elections and have winners announced at that level. This is the only way to minimise or altogether avoid the rigging at the national level, which we’ve become so accustomed to in almost every election.
Transforming the country’s political culture and creating a climate of free and open debate on policy issues is a tall order but is nonetheless achievable.
However, that does not even require a referendum. It requires leaders who can not only lead by example to bring about the change in political culture but those who can inspire others to do so.
President Uhuru Kenyatta and his buddy Raila Odinga are beginning to do just that with the handshake. Let’s just make sure Team Tangatanga doesn’t mess with the good news and progress.