Berkley Center

Background: This discussion between Angela Reitmaier (who worked with the Kenyan Secretariat of the New Partnership for Africa’s Development from 2007 to 2009) and Hon. Abdikadir Hussein Mohamed took place in Berlin on October 21, 2011, when German President Christian Wulff presented the German Africa Award 2011 to Hon. Abdikadir, in recognition of his contribution to implementing constitutional reform in Kenya and of his fact-oriented and conciliatory way of working for equal opportunities and human rights. In the interview, Hon. Abdikadir touches on how he, a young Muslim lawyer from Northeastern Kenya, was able to forge compromises on the draft constitution of Kenya, by trying to make it a constitution in which everyone gained, in which ethnicity, the driving force behind the post-election violence in Kenya in 2008, was addressed, and in which corruption was dealt with through broader reforms of the Judiciary and the Police. In his constituency, Hon. Abdikadir supports education and farming, working towards obtaining national funding for an irrigation scheme. For Africa, he sees a brighter future in terms of democratic gains and economic growth.

President Obama recently said that history is made by ordinary people who dare to dream. Did you have a dream when you were growing up in Mandera?

I did not have a specific dream, but I did not think that there would be limits for me because of my background of coming from Mandera, a small town in the northeastern corner of Kenya.

You are being honored today for your work and leadership as chairman of the Committee on Constitutional Review. Where do you draw your strength and values from?

First and foremost, from my family. In fact, on my trip to Germany, I am being accompanied by my wife and eldest son. Also from my cultural background. The pastoralists have a strong democratic ethos, maybe not in terms of governance, but certainly in terms of free speech. Young men (unfortunately not women) are encouraged to discuss and deliberate on issues relevant to the community.

My training as a lawyer and my experience, including representing people who were on death row or had faced human rights abuses, formed me and inculcated in me a strong sense of what is right and what is wrong.

The specific time in history, during which Kenya was moving from a difficult past to a brighter future, also shaped me. When I was in law school, there was a lot of discourse. The generation before us was not allowed to speak up; quite a number of their professors were exiled. But because of their struggle, we could speak up. This greater openness, and the Saba Saba events of July 7, 1990, when students and church groups organized large protests in Nairobi to call for democracy and 28 protesters were killed, helped shape my world view.

Kenya struggled for so many years to get a new constitution. Was there anything special in the constitution that gave you a better chance at reaching common ground on a draft? Who were your most important counterparts? Did women play a role?

I was lucky to be there at the right time. We had the 2005 defeat of the constitution in a referendum, and then we had the violence after the 2007 elections. The country was almost broken but wanted to move forward. And fortunately, I did not have any baggage, I did not have strong linkages to one or the other side of the political divide, and I also did not have a past which was one-sided or tainted. Therefore, I was a fresh face, and people were willing to give me the benefit of the doubt.

But I also think that my training had put me in the right place. The issues were mostly legal and I had experience with negotiations, which enabled me to be fair to both sides and allowed them to come together around the center. Also, the Parliamentary Select Committee on the Review of the Constitution was a strong committee. It had 27 members, including ten cabinet ministers, two deputy prime ministers, and representation from important sectors.

For instance, you asked about women. Some of the strongest women leaders, women with the best record for struggling for women’s rights, were members of the Committee, including Martha Karua, Amina Abdallah, Millie Odhiambo, and Charity Ngilu.

The two opposing sides had strong representation with Deputy Prime Minister Uhuru Kenyatta on President Kibaki’s side, and Deputy Prime Minister Musalia Mudavadi and Minister of Lands James Orengo on Prime Minister Raila Odinga’s side.

In terms of expertise, eleven of the members of the committee were lawyers; one came from the military, another from the provincial administration. So we could draw on people with first-hand experience.

What I brought to the table was that I won the trust of all of the members, which allowed me to act as a referee. Fairly early in the process I decided not to vote on any of the decisions. That was not required, but I chose to do it so that I could play an arbiter’s role. My role was also strengthened by the fact that I was voted in, not selected or appointed.

The fact that we had worked together for a year before the negotiations began over the text of the constitution also helped. At that point, we already had a track record and had tackled critical issues. We had set up a new interim electoral commission and a new court which only dealt with the constitutional review process. This was necessary because we were worried that the courts might stop the process, because the new constitution required reform within the judiciary.

All in all, we set up about five institutions, which required a lot of negotiations, because in 2008, after the post-election violence, Kenya was very divided. We also agreed on the review process, setting up a road map. So by the time we came to the negotiations about the text of the constitution, we had established cohesion and trust. The political environment was also helpful. Kenyans, the media, and former UN Secretary Kofi Annan and his team, who had negotiated the peace process on behalf of the African Union, all wanted to move forward.

A constitution is built on common values, yet there were issues that divided religious communities, such as qadis courts and abortion. How did you overcome frictions?

This is one of the most difficult challenges of constitution building. On the one hand, you need the widest input from all sections of society on the widest range of issues, but then you have to narrow it down, and that can only be done in difficult negotiations. There is no short-cut. Deciding by vote is not an option, even though it is a democratic process. If you put the qadis court provision to a vote in Kenya, it would be thrown out, yet it is a very important issue for a large minority.

I attended a conference in Cairo last week on constitution building, and the question was how to deal with the Coptic Christians, who represent about ten percent of Egyptians. Some participants suggested putting their rights to a vote, but I disagreed, arguing that provisions of a constitution are not decided by vote. It is not a document where the winner takes all; it has to be a constitution for everybody, the weak, the majority, the minority, women, and men. So you have provisions that would not be voted in by a majority, and that may not be democratic, but there has to be good will, honest negotiations, and an understanding that all have to win. In the end, 99 percent of the committee’s decisions were reached by consensus. Every article of the constitution was put to a vote, but the rule was that negotiations would continue until all agreed. If there were strong views, we would sit and work through lunch, forego dinner, or stay until after midnight.

What also helped was that we had designed the process in such a way that no one group could block it. That was the lesson learned from the past, especially the Moi era, when President Moi disbanded the constitution-building process. In 2005, it had been the courts who had thrown spanners in the wheel when it was time to move forward, and to avoid such a situation, we had created a new court.

In 2005, we had stakeholders who were the negotiators; this time, we had not only stakeholders, but also a group of experts: six from Kenya and one each from South Africa, Uganda, and Zambia. The experts at times suggested better ways to go, and their proposals became known to the public and were embraced by them. So the way the process was designed also helped.

Are issues that were controversial at the drafting stage still controversial now at implementation? Are other issues that were not in contest during the drafting and approval processes proving controversial now? I am thinking, for instance, of the death penalty, which the new constitution did not abolish.

Allowing the death penalty under the new Constitution was not controversial. The institution of qadi courts was controversial during drafting, but it is not as controversial now as it was then. Land was very controversial; it is quiet now, but I suspect it will become controversial in the next few months, when we will draft implementing legislation. What is proving controversial now in terms of implementation, rather than the principle itself, is gender equity.

The Constitution requires that not more than two-thirds of any gender may be elected or appointed to any office. How is this to be implemented for the National Assembly? So far, we have had a Parliament consisting of one chamber, but after 2012, we will have two chambers (Assembly and Senate) and a local assembly (County Assembly). For the new institutions of Senate and Country Assembly, it was easy to find a method of preventing more than two-thirds of one gender to hold seats.

For the National Assembly, this is difficult, because membership is derived from constituencies, which are physical realities on the ground and in which you have vested interests. How do you ensure that at least one-third of the members of the National Assembly are women? We started with instituting special seats for women in all of the 47 counties. Thus 47 women will be elected from each of the counties. But that will not be sufficient to satisfy the one-third requirement. The current percentage of women in Parliament is 11 percent, so assuming a similar percentage, there could well be a shortfall. The hot debate now is about how to make up for that shortfall, and as we speak, the issue is being addressed by a proposal for a first amendment to the constitution.

You were elected as MP at the time of the disputed presidential elections in 2007 and the violence that followed. How can ethnic divisions be overcome? Do you see a role for religious leaders?

Most of the African constitutions created at independence in the 1960s do not even mention the words “ethnic” or “tribal.” Yet, ethnicity and tribalism are probably the most potent political forces on the continent. Political mobilization is done through ethnicity. The path to election is to become the leader of the ethnic group in question, get elected, and then use state resources to enrich this group. At independence, the nationalists saw ethnicity as a tool used by cronies to divide Africa, so they did not talk about ethnicity.

The intellectuals thought this was a thing of the past, so they also did not talk about ethnicity. Our new constitution is up-front as far as ethnicity is concerned. It requires ethnic balance, regional balance, and gender balance. The leadership of the military must, for example, come from different ethnicities. Each of the Commissions created under the new Constitution must show what we refer to as the “face of Kenya,” in terms of gender, ethnicity, or region. But overcoming ethnic divisions is challenging. Like gender equity, it requires a lot of education. The majority of our voters are women, but they do not vote for other women, they vote for men. Because of economic, social, and cultural biases, it is very difficult for women to be elected. I think education plays a very key role in changing that.

Regarding ethnic divisions, Parliament passed the National Cohesion and Integration Act after the post-election violence, which instituted a National Commission on Cohesion and Integration. Hate speech has been criminalized to avert ethnic or tribal sentiments. Education, as I mentioned before, is crucial, and so is using the law to promote tolerance, including through quotas or other affirmative action measures.

And religious leaders?

I think religious leaders are absolutely necessary. Fortunately for us, religion is not as negative a force as it has been in many other places. Our military, unlike the one in Pakistan or Egypt, is not political. It stays in the barracks, it does not construct roads or have businesses, and our politicians do not come from it. And our populace is not divided on religious issues. The majority of Kenyans are Christians, and the majority in my Committee were Christians, and they had no problem with qadis courts. In fact, they were pushing for the Muslims to have that separate religious court. So in Kenya, precisely because religion is not such a potent force, I have no doubt that religious leaders can play a positive role.

What you need is credible leadership. It can come from elders, for example the Panel of Elders, or the Panel of Eminent Personalities, or religious leaders. In Northern Kenya, we are pastoralists and cattle rustling is a frequent problem. When it happens, as our first response, we go to the religious leaders to have them solve the problem.

In 2004, the Africa Award was given to John Githongo. Even though the latest East African Bribery Index recorded a slight improvement, corruption remains rampant in Kenya. Does the new constitution address this problem?

When John Githongo was the permanent secretary for governance and ethics in the Office of the President, he was pushing for an independent Anti-Corruption Commission and a separate police unit that would deal with corruption. But the commission has not had a lot of success. Now we have a broader framework to deal with corruption. One is the judiciary. Our judiciary is undergoing unbelievable change, and one of the biggest centers for corruption was the judiciary. There used to be a saying, “Why hire a lawyer when you can buy a judge?” The new Chief Justice and the Deputy Chief Justice will bring change to the judiciary. Half of our High Court judges are newly appointed in a very open process; the new appointees are mostly young, not linked to any corrupt practices, and half of them are women.

In addition, the magistrates and judges who stay on will be vetted publicly for corruption. The team engaged in this process is non-political, non-partisan, and includes three foreign experts. It has independent funding. The police force is undergoing the same process. Right now, as I was leaving Kenya, we have established a panel to set up the new police service commission. The chair of that team is Hassan Omar of the Human Rights Commission. If you had asked anybody in Kenya who the police would have voted the worst person to head that commission, it would have been Hassan. Now he is chairing this commission. So if we reform our police and our prosecution, if we reform our courts, I think we will have a better shot at fighting corruption than relying on one particular unit that has no linkages to other relevant actors. And our politicians are taking note. In addition, we have a very vibrant media. Corruption is very, very expensive right now in Kenya because of the limelight it is in.

Poverty is on the rise in Kenya in general and in the northeast in particular. The recent drought and higher food prices are making things worse. What can be done to tackle poverty?

Thank you for asking me that question. Those are the people I represent. Now we have rain, but a couple of weeks ago, there was a terrible drought. Together with my colleagues who represent the two other constituencies in the Northeastern corner of Kenya, bordering Ethiopia and Somalia, we pushed for an irrigation project. There is a river that runs along which could be used for irrigation. The Kenyan budget has included about $100 million, or slightly less because of the decline in the value of the shilling, to support irrigation, and this is the way forward in terms of food sufficiency. We get a lot of famine relief, but I think it is as much a force for good as it is a force for bad, because of the dependency it creates. I think we should have a good shot at getting things done through irrigation. Infrastructure is another big problem. Kenya has developed along the railway, that was called the "Lunatic Express" when it was built. There is a push now to open up the North, from the port of Lamu all the way up to South Sudan and Ethiopia. If that corridor is opened, and I think ground breaking for the port will be done in November or December; that would really turn things around in terms of economic development.

A few days ago, Kenyan troops marched into Somalia in pursuit of Al-Shabaab. What is your opinion about the situation?

The situation in Somalia is terrible. Somalia is the quintessential failed state, having failed for the last twenty years. We have the pirates on the sea, we have famine inland, we have a refugee crisis across the border and within Somalia and Ethiopia, and we have the terrorist threats. We heard yesterday or the day before yesterday that the French lady who had been kidnapped had died in captivity.

For a long time Kenya’s interaction with Somalia was as much as possible hands-off. We supported the peace process that set up the Transitional Federal Government, the negotiations took place in Nairobi.

We host close to one million refugees. In fact, the fourth largest settlement in Kenya is the refugee camp in Dadaab, with almost 600,000 people. But unlike Ethiopia, Uganda, or Burundi, we never had forces on the ground in Somalia, and we never interfered in internal dynamics. And that was a wise policy. Now that is no longer sustainable because the kidnappings had a direct impact on the tourism industry in Kenya. Almost every other day, something bad happened, so I believe Kenya was put between a rock and a hard place. But in my opinion, the ultimate solution is solving the Somali political problem. I believe it could be solved by concerted effort between the African Union and the international community. That would be the best answer to piracy and to the refugees. Kenya has a coast line, but no pirates. Somalia has them. Northern Kenya, and parts of Somalia, have the same ecological zone. There were fights and drought, but no famine on the Kenyan side. The Kenyan people were receiving food. The difference is that you have a failed state on one side, and, as weak as the government of Kenya might be, a functioning state on the other side. The Somali problem just has to be solved.

You won the Mandera Central seat against a nationally acclaimed candidate, Billow Kerrow. Now you have gained national status yourself. Re-election in Kenya often depends on performance at the constituency level. What are your achievements there? Will you vie for one of the other positions now created under the new constitution?

Let me answer the first question and dodge the last one. I campaigned for Billow Kerrow in the election before the one I ran in. We are still friends. As MP, you have to focus on your work on the ground. My key push is education. We have in the last four years doubled the number of children attending school. Our enrollment rate was very low, at 27 percent when the national enrollment rate was close to 90 percent. We are approaching the 50 percent mark now. We have doubled the number of primary and secondary schools. We have improved the supply of water, and if the irrigation project is implemented, it will bring development on the ground.

Another achievement is peace. When my colleague Billow Kerrow left, some ethnicities were fighting each other. In the week I was elected, there were a number of deaths within the constituency and a few months earlier we had lost almost 40 lives. Certainly now people are more secure. As to what will come next, I hope to hold my horses for several more months. If you ask me in February, I will be able to give you an answer.

You mentioned the new processes of vetting judges and selecting the judiciary. Do you see the Kenyan example as also important for the neighboring states? Does it have an impact there? Are people now interested in what Kenya is doing and copying it?

As I observed, I attended a conference on constitution building in Cairo just last week. They had invited me because they wanted to see what we had done in Kenya and whether they could learn from our experience. Obviously, we had learned from the South African process and took over some of the provisions, including setting up a Truth, Justice, and Reconciliation Commission. So I have no doubt that our neighbors or other regions of Africa are looking at Kenya to see what works. South Sudan has begun to build its own constitution and is looking at the Kenyan process. In the East African region, if something is best practice in one place, it will be imported in other places. So I have no doubt, if our systems work, if the results are good, they will be copied elsewhere.

And what are your present thoughts on that? Will it work?

In some instances, it is in fact working better than I had expected. For example, no one would have expected Willy Mutunga to become Chief Justice. If the politicians would have had a choice, they would not have selected him. Without the new constitution, I do not think he would even have applied for the position. But he did. It was an open process; I believe that there is no other country in the world where candidates for the Chief Justice can just apply and are publicly interviewed on TV. Or the example of Hassan Omar, who became Chairman of the Panel that will set up the Police Service Commission. So positive developments happened and even surprised me.

However, on the whole, implementation will be very difficult, but I think we will see the fruits. Kenyan society is a very open society, and the state now belongs to the people. There is no longer fear of, or reverence to, political leadership. The politicians are the most unpopular people in Kenya, and Parliament is the most unpopular institution. I think this encourages public participation. Kenyans appreciate having a vibrant press. These developments all have something to do with the constitution, i.e. the fact that the freedom of the press is enshrined in the constitution and that positions are required to be filled in open processes. When I go back to Kenya, our committee will vet the candidates for the Electoral Commission, following the process outlined in the constitution. Before, the President could appoint. Now, it is an open process. I am happy with the way things are going, and I have no doubt it is for the good.

Before we close, do you have any final thoughts?

What is happening in Kenya is happening in many places in Africa. The narrative about the African Continent has been negative, rightly so, but now we have a window of change. There is a journalist who published a book called “Freedom Next Time,” meaning that every time the people are grasping for freedom, somebody comes, takes away that freedom and says “next time.” But now, people are finally getting rid of horrible dictatorial regimes, and now positive things are happening in Africa. Of course, Somalia is there, Comrade Mugabe is there, but for example in North Africa, Tunisia is electing a constitutional assembly this weekend in the first free election for maybe 50 years. Egypt will have elections next month for the first time in a long, long time. There was just an election in Zambia. South Africa seems to be holding, and this is really the beacon for many things on the African continent. So Kenya has come back from the brink, and different regional groupings in west and east Africa are moving forward. On the economic front, there are now problems in the north, and even though our economies are not very large, the majority on the IMF’s list of the ten fastest growing economies are from Africa. If you look at the World Bank’s “Doing Business” report, the majority of the best reforming countries are from Africa, which is really not a narrative that is heard about Africa. So this is a very hopeful time to be in Africa. The death of Muammar Gaddafi yesterday probably shows that it is also a very dramatic time to be in Africa. And I hope we can finally turn that corner.