Background: As part of the Religion, Conflict, and Peacebuilding Fellowship, Consuelo Amat interviewed Mr. Abdirashid Abdullahi, member of Kenya's Committee of Experts on Constitutional Review (CoE). In the interview, Abdullahi describes the context in which the reform process started and the most contentious issues in Kenyan politics that they try to address in the proposed document.
Mr. Abdullahi, could you tell me about the beginnings of the constitutional review process and how you got involved?
The Committee of Experts has been gathering a year to write the draft constitution that will be voted on August 4 by the people of Kenya. But before the writing actually began, we did extensive outreach to key actors and stakeholders in the community: we met with a variety of NGOs, business leaders, and religious figures. We also held town hall meetings all over the country where common citizens got a chance to voice their opinion about the issues that they wanted to see change in their constitution. In addition to gathering general input from Kenyans, the CoE defined the most critical issues that a new constitution needed to address by studying the three failed drafts (the most recent one being 2005), as well as the major grievances of the people around the 2007 elections. Indeed, the impetus for the latest constitutional review process was the four-point agreement that came out of the Annan talks after the post-elections violence. Crafting a new constitution with checks and balances for all branches of government was seen as particularly important.
Could you speak about the most important issues that called for constitutional reform, based on your outreach to the community and study of failed attempts to re-write the document?
There are three main issues that stand out as the most contentious and important for Kenyans, and these are governance, devolution of power and resources, and the transition to a new constitutional order. It is worth noting, however, that the more recent discussion on the referendum has revolved around narrower issues that did not seem significant before, such as abortion and the qadi (Islamic) courts. This change of focus is quite unfortunate, as it derails the conversation away from the central issues that Kenyans have struggled for during the past 20 years of constitutional reform. Premeditated by some politicians and members of the clergy who benefit from the status quo and wish to see the new constitution turned down, the current debate is taking a sectarian, tribal, and mostly religious character. While the debate is turning sour, the president and prime minister support the new constitution, which was not the case in past attempts. Despite the recent departure from the core issues, I believe that the three topics that I will discuss ought to be addressed in order to prevent another tragedy in the long run.
Governance
One of the most contentious issues has been whether Kenya becomes a parliamentary system, remains a presidential system, or adopts a hybrid of the two. The unchecked and excessive power of the executive is often cited as a major grievance, especially given that these overreaches have taken on ethnic dimensions. For instance, the current president, Mwai Kibaki, comes from the Kikuyu community (the largest in the nation), and he has been accused of appointing mostly loyalists from the Kikuyu and Meru groups. Raila Odinga, current prime minister and Kibaki’s former bitter opponent in 2007, comes from the Luo community. Making Raila prime minister was one of the tenets of the Annan-led power-sharing agreement that halted the post-elections violence. Thus, the redistribution of power among the three branches of government became one of the most important goals of the constitutional reform.
The initial draft, which the CoE submitted in January 2010, prescribed a parliamentary system, but this structure was turned down by the Parliamentary Select Committee in Naivasha and replaced with a presidential system. The CoE refused to endorse the same presidential system of the current constitution, which grants excessive powers to the executive. As a consequence, the Naivasha participants and the CoE reached a compromise with a hybrid: a presidential system without a prime minister, a senate or upper house, and a parliament that can curtail the power of the executive. Separating the executive from the judicial branch was our main objective, as well as making sure that the judiciary had the power to impeach the president and the mandate to manage the 47 counties. The National Assembly did not significantly change this new version, and this was the second-to-last step in the constitution-drafting process (the last one being the popular referendum).
Devolution of Power and Resources
Kenyans desire a more decentralized system that devolves authority over local affairs to district-level institutions. As a result, the draft constitution creates this layer of government, and it corresponds to Kenya’s 47 counties. Fortunately, this proposition passed the Parliamentary Select Committee and the National Assembly, and it is currently in the draft that Kenyans will vote down or approve on August 4.
Transition to a New Constitutional Order
Finally, there remained a major political problem regarding the way in which the current leadership would be deposed if the constitution passes. The CoE outlined a recommended process: tenured figures, such as judges, would be submitted through a vetting process. In case of corruption and/or other criminal charges, then they would be ousted and replaced. The fate of those holding short-term positions, such as the ministers, would be decided in the 2012 elections. The parliament, during the Naivasha meetings, submitted dozens of potential amendments to this section of the constitution, but not a single one passed because they could not reach agreement. As a consequence, the CoE’s initial version was left intact and will be voted on by Kenyans on August 4.
Could you go into the abortion and qadi courts clauses in the proposed constitution, and why you think those issues have recently been the source of so much discord?
In Kenya we are against religious fundamentalism, be it Islamic or Christian. The question of qadi courts is a matter of minority rights: Muslims comprise about 10 percent of the total population, and those courts have been in place since before British colonization. In 1895, as the coastal region of Kenya (which is Muslim-dominated) became a protectorate of the British, the queen of England agreed to Sultan Zanzibar’s demand to maintain the qadi judicial system. Furthermore, the qadi system does not override Kenyan courts, and it is set up for non-criminal matters, such as to resolve problems regarding family and inheritance for Muslims. In addition, Muslims can choose to use or not to use the qadi system, making it completely voluntary. It is hard to understand why this would become such a contentious issue now, after decades of the existence of these courts. The only difference in the clauses between the current and draft constitutions is that the latter allocated some public resources for funding the courts.
With regards to the abortion clause, it also escapes me why it has become such a controversial issue. The language in the current constitution of Kenya is almost identical to the one that we are proposing—namely, that abortions are illegal except when pregnancy termination could save the life of the mother, as certified by a doctor or health practitioner. Instead of reading, “the life of the mother is in danger,” as the current constitution does, the exception in the proposed clause reads, “the health of the mother is in danger.”
While it is not obvious what is making these issues so explosive, there are theories that blame the beneficiaries of the status quo, who wish to see the proposed constitution turned down. My understanding is that in 2007, the church was politicized and was thus incapable of playing a constructive role in ending the violence. Today, many members of the clergy are visibly taking a strong position against the draft constitution because of the abortion and qadi courts clauses. While that is a major part of the justification that congregations provide, many argue that the clergy is actually against the current constitution because the new document empowers the National Land Commission to revisit land ownership. It is well-known that the church is a major landowner in this country, so they would most likely lose from that new provision.
Now that you are done writing the constitution and that the referendum is coming up, what is the Committee of Experts doing these days?
We are now dedicated to civic education full-time. Our mission is to make sure that every Kenyan who is eligible to vote understands the constitution and is able to make his/her own decision. The CoE does not encourage or discourage approval of the document, but is responsible for doing outreach to the entire country via television, radio, and town hall meetings. The government has already printed a copy for every Kenyan who is eligible to vote, and we are out doing outreach all day, every day. It is difficult to remain agnostic about the draft constitution, as it is a document in which we poured significant amount of resources, thought, and heart, but we do try to make the costs and benefits of the various provisions clear. I am especially proud of the Bill of Rights in the draft, as it is perhaps the most progressive of any constitution in Africa.
