Last Friday, on a cold and cloudy morning, about half million Kenyans celebrated the promulgation of a brand new constitution in an impressive show of unity at Uhuru (freedom) park in central Nairobi. The constitution now in force is a very modern and comprehensive document. It introduces many substantial changes which will impact on the nature of politics in Kenya.

A procession of political leaders, judges, military leaders and civil servants all took new oaths and pledged their allegiance – no longer to the President but to the Constitution. Under this new constitution, all sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this constitution. As Prime Minister Raila Odinga stated at the ceremony: “government shall be accountable to the people of Kenya”.

It was a moving moment for Kenyans who have struggled for a new democratic dispensation during the past twenty years. When the Moi dictatorship was finally defeated in the 2002 elections and the new Rainbow coalition under President Kibaki came to power, a new constitution to reorganise power in Kenya was promised within 100 days. However, changing the entrenched power relations and delivering a new constitution proved even more difficult than winning the 2002 elections.

The struggle for democratic reform met its most serious set-back in what many perceived as the ‘stolen’ presidential elections of December 2007. In their aftermath, weeks of politically organised ethnic violence seriously threatened the cohesion of Kenya. Peace was restored under mediation of Kofi Annan and a team of African leaders resulting in the formation of a Grand Coalition Government that allowed President Kibaki to continue his presidency, with Raila Odinga as Prime Minister.

One of the tasks of this coalition government was to prepare a new constitution according to a fixed timetable and procedure. With the violence and drama of early 2008 still fresh in people’s minds (“it continues to stare at you and served as an important wake-up call” as someone in the crowd told me) and the uncomfortable coalition between the two contending political forces at the helm of government, few people anticipated a positive outcome for the reform process.

A home-grown constitution
Despite these issues, a positive result was indeed delivered by the Kenyan people. Over 70% of voters participated on 4 August 2010 in the referendum on the new constitution, which was ratified with a substantial majority of over two thirds of the votes cast. It is the first home-grown constitution of Kenya, replacing the constitution that was negotiated with the UK at Lancaster House prior to Kenyan Independence in 1964. Although the process has taken long and was often conflictuous, few countries have managed to overhaul their full constitution.

The ‘Lancaster House’ constitution had already been amended a number of times, mainly for the purposes of strengthening the position of the ruling elite by centralising the powers of government. This centralisation was in line with international thinking at that time, namely that a strong central government is good for economic development. However, in a recent article in Foreign Affairs, John Githongo, the former anti-corruption czar of Kenya, observes that a government that had succeeded in delivering the hardware of development – schools, roads, and growth – had failed to deliver on the software of nationhood, noting that most Kenyans valued the latter more. The long-sustained drive among Kenyans for a new constitution, in which the state derives its authority to govern from the will of the people, has emphasised the need for legitimacy of government and inclusivity of all population groups in the management of state affairs.

With the promulgation of the new constitution, Kenya is closing the post-independence period. In the words of the Prime Minister Raila Odinga: “Today, we close a long chapter in our history. We put repression, exclusion and heroic struggle behind us once and for all. We have opened a clean new page in our book. On that page, we begin writing the story of an equal and just society”

What’s new in the new constitution?
The Constitution now in force is a very modern and comprehensive document. It introduces many substantial changes which will impact on the nature of politics in Kenya. Kenya will continue to have an executive president, but the powers of the executive will be severely restricted because of the consent required from parliament for many decisions. The government will now be restricted to twenty-four ministers who will no longer remain members of parliament. Parliament will become bicameral and consist of a Lower House and an Upper House (Senate). Government will be devolved to forty seven counties, each with their own mandates and budgets, for which citizens will elect governors and councilors.

Political parties are to receive public funding on the condition that they become registered and meet the criteria of internal democracy. Independent candidates can stand in elections as well. The independence of the judiciary and a number of institutions such as the electoral commission of Kenya will also be strengthened.

The rights of Kenyans are secured in a Bill of Rights in the new constitution while a whole chapter of the constitution is devoted to leadership norms and integrity. Gender receives much attention in the constitution and 47 extra seats are created for women in the new Parliament. The same applies for young people and ‘super’ minorities for whom extra seats have been created to ensure their presence and participation in the political arena.

The new division of powers within the national government and the decentralised new counties, along with the amendments to the electoral and political party system, will change the incentives for the political processes in Kenya quite drastically. The next general elections in August 2012 will require Kenyans to cast six ballots for the various elective positions (President, MP, Special women’s seat, Senator, Governor and Councilor). The elections will therefore become a tremendous logistical operation and will also require investment in civic education to prepare the electorate.

Due to the diffusion of power, political leverage under the new dispensation can only be acquired by investing in stronger national political parties. This could mean a reduction in the current number (44) of political parties. At the same time, the devolution of power could also result in a ‘democratisation’ of corruption as long as countervailing powers have not been developed at the county levels.

Role CMD-K
The interparty cooperation that is institutionalised in the Centre for Multiparty Democracy in Kenya (CMD-K), resulted from the initiative of the NIMD Board to establish relations with the Kenyan political parties following the end of the Moi regime. CMD-K was established in 2004 and has since maintained a close partnership with NIMD. Constitutional reform through a participatory process has been one of CMD-K’s priorities from the start.

When the presidential election at the end of 2007 collapsed into violence, CMD-K was one of the very first Kenyan organisations to stand up and organise political parties, civil society, professional and faith-based organisations, to keep the country together and put pressure on the political elite to make peace. During the mediation led by Kofi Annan and his team, CMD-K met every morning over breakfast with the mediators to share ideas and strategies. When the mediation looked set to fail, Kofi Annan threatened the ministers around the negotiating table that he would walk out and make a deal with the network facilitated by CMD-K. Soon thereafter, a deal was struck and the Grand Coalition Government was formed, with a National Accord that included the agreement to complete the constitutional process.

Catalyst for reform
To assist with the implementation of the National Accord, CMD-K formed the Inter Parties Forum for Constitutional Review, which developed joint proposals for the new constitution, presented these proposals to the Committee of Experts (charged with writing the new Constitution), and ensured that political parties were sufficiently informed about the content of the issues at hand. This helped galvanise discussions within political parties and helped broker a consensus on the most contentious issues, namely: the form of government, the devolution of power, and the national land issue. At the same time, CMD-K facilitated a national platform for constitutional reform with civil society, professional and faith based organisations, maintaining a wide alliance for constitutional reform throughout Kenyan society while becoming a catalyst in keeping the reform momentum alive.

Exchanges with other African countries have since been organised to exchange lessons on constitutional reform processes. These peer exchanges have proven to be quite helpful for stimulating the debates among political parties in Kenya. Also, politicians of the political parties made substantial and appreciated contributions in dialogues with their Kenyan counterparts at different moments during the political process.

CMD-K was also quite instrumental in civic education about the new Constitution in the run op the 4 August referendum. They published an accessible abridged version of the constitution that was distributed widely in Kenya. During a three-week period, CMD-K produced daily television and radio programmes about the new constitution on all the media networks, including talk shows, debates and spots for each political party. The radio broadcasts were in the 5 major Kenyan languages but were eventually made available in the 29 indigenous languages as well. Research has since established that radio and television channels were the most efficient at informing citizens about the new Constitution.

Finally, CMD-K also managed to organise monitors in 20,000 polling stations, and were often the only ones monitoring the fair conduct of the referendum at the local level. Their investment in this network will now be used to form coalitions at the local level to assist with and to monitor the implementation of the new Constitution.

Arriving in Nairobi on the day before the promulgation of the new constitution, I was requested to open a CMD-K conference of women leaders of political parties and women’s organisations to discuss the implementation of the constitution. The conference demonstrates that Kenyans are aware that there is no time for complacency and that the implementation of all the changes now requires priority attention. The women resolved to undertake action that same night to petition the government, which had just decided to form a nine-person cabinet working group to oversee the implementation. Since the constitution demands that at all representative levels for every 3 persons there should be 2 different genders, the women petitioned the government to assure that al least 3 women ministers should be part of this important working group.

Implementation of all the new institutional arrangements, procedures and rights will become the biggest challenge in the months and years ahead. The implementation schedule outlines a period of between 1 and 5 years for its implementation. The government, however, has meanwhile decided that all legislation should be completed within one year, setting a rapid pace for the implementation of the reforms. This will require a tremendous effort at all levels of government, parliament, judiciary, local government, political parties and civil society. It is important that this is done in the spirit of national unity that was on display at Uhuru park (and at many other places throughout Kenya that same day). CMD-K, with the support of NIMD and other international partners, maintain an important strategic position to contribute to this process.