Constitution Snip

Former President Mwai Kibaki holds a copy of the new constitution during its promulgation in August 2010. The audit report says the search for the constitution was partly due to the 2007/08 post election violence that left more than 1,000 people dead (Photo/Google).

The 2007/08 post election violence that left more than 1,000 Kenyans dead is one of the key reasons that led to the push for constitutional reforms in Kenya.

An audit report on the constitution has stated that the violence which also left more than 650,000 people displaed was adopted as

“part of the long-term measures to address the root causes” of the violence.

The report which traces the constitutional reform to the colonial times also says the reforms were pushed by the need to deal with dictatorial Presidents.

“Kenyans‘ desire for a new constitutional dispensation can be traced back to the effects of concentrating power in the presidency without attendant checks and balances.”

It will be noted that the violence has been associated with the contested Presidential election results of the time. And despite there being no clear winner of the election as the then Electoral Commission Chairman Samuel Kivuitu would later say, Mwai Kibaki was declared the President.

According to the report, prior to the new constitution which was inaugurated in August 2010, elections in the country were not platforms that advanced democratic rule in the country. This bad practice the report says started as early as 1969 with the ban of the Kenya People’s Union (KPU) – one of Kenya’s earliest opposition political parties – the introduction of the infamous Section 2A that saw KANU made the only party in Kenya and the attempted coup of the August 1982.

“Elections became rituals as opposed to a channel through which the democratic voice of the people could be heard,” the report partly reads.

The report further notes the unfortunate situation that would later be experienced in the country after the (re)introduction of multiparty politics in 1991 – that of constant ethnic clashes every time Presidential elections were held in the country.

“Presidential elections triggered deadly ethnic clashes in the Rift Valley and Coast Regions which were perceived as KANU strongholds. The political objective behind the clashes was said to be intimidation of communities perceived as opposition supporters. As it turned out, the displacements during the voting period disenfranchised voters.”

“It became clear that multiparty politics, without broader political reform, was no guarantee for democratic space. The state had invented ways to subvert democratic will even within the context of multi-party politics.”

The report names the Provincial Administration and Local Authorities as some of the ways the state was using to remain in power “illegally.”

“Kenyans wanted institutions through which repressive laws and practices were meted out such as the Provincial Administration either abolished or reformed and the Police Force turned into a Service for the people.”

Following the violence the then President and Leader of Party of National Unity Mwai Kibaki entered into negotiations with Raila Odinga, the then leader of the Orange Democratic Movement (ODM) who would later become a Prime Minister under a shared power deal. The negotiations were led by former United Nations Secretary General Kofi Annan and came up with a raft of recommendations that later became known as the Agenda 4 items.

And in a big way the Agenda 4 items or the ‘long term issues and solutions’ were later to be given serious considerations in the new constitution. They include institutional and land reforms among others.

The new constitution is also clear on how the President is to be elected and the threshold (50% plus 1 vote) which is required before a Presidential candidate can be declared a winner.

Further the constitution is clear on how the Presidential elections can be contested and even how the President should be sworn in.

“The swearing in of the President-elect shall be in public before the Chief Justice, or, in the absence of the Chief Justice, the Deputy Chief Justice,”

states Article 141(1) of the constitution.