We are very pleased to welcome this guest contribution from Siobhán McCarthy–currently volunteering with the Federation of Women Lawyers in Kenya. You can learn more about Siobhán on our Guests page.

Kenya’s proposed constitution is an ambitious document. It contains provisions, which if implemented, will see major reforms including reform of the way in which the country is governed and the replacement of the current judiciary. It also contains a detailed Bill of Rights, guaranteeing a long list of economic and social rights for all Kenyans, including: the right to “the highest attainable standard of health…including reproductive health care” (Art. 43(1)(a)), the right to “accessible and adequate housing, and to reasonable standards of sanitation” (Art 43(1)(b)) and the right to “clean and safe water in adequate quantities” (Art 43(1)(d)).  The Proposed Draft also contains some ambitious provisions to ensure that the marginalised in Kenyan society are adequately represented at government level. Article 54 provides for the implementation of the principle that 5% of members of elective and appointive bodies be persons with disabilities.  This is repeated at Article 81(c) which provides that the electoral system shall have fair representation of persons with disabilities.  Article 81(b) provides that not more than two-thirds of members of elective public bodies shall be of the same gender – thus ensuring that women shall constitute at least one-third of the membership of elective public bodies. However, there have been problems with the campaigns run by both the Yes and No sides. The “No” campaign has seized on emotive issues in the draft – in particular the issues of abortion and the jurisdiction of the Khadis’ courts – while the “Yes” campaign has implied that the proposed constitution is flawless and that if passed, Kenyans will immediately see an improvement in the way in which the country is run and a corresponding improvement in their daily life.

One of the most-debated provisions in this campaign is Article 26(4) which provides that “abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger”.  The “No” campaign has consistently argued that through this provision abortion will be legalised in Kenya.  The “Yes” side have refuted this argument stating that the draft simply enshrines the current rules in relation to abortion – that it is permitted if authorised by a medical practitioner in a situation where the mother’s life is in danger. The reality is somewhere between these two opposing arguments. The provision is broader than that suggested by the majority of the Yes camp – it extends to situations where the health (rather than the life) of the mother is in danger. Further, it could be argued that the requirement that a trained health professional give his opinion relates only to the first sub-clause – ie that a trained health professional must be of the opinion that there is a need for emergency treatment but that such an opinion need not be given as to whether the life or health of the mother is in danger.

However, such nuanced arguments have not been debated – rather for the sake of easy headlines, the issue has been simplified to the extent that the No campaign argues that if the draft is approved, abortion will be made legal and become widespread throughout Kenya and the Yes campaign argues that abortion shall remain illegal unless the mother’s life is in danger.

A similarly simplistic approach has been taken to the issue of land rights (Chapter 5 read in conjunction with Art 40).  The Proposed Draft provides for the creation of a National Land Commission which shall, amongst other functions, investigate “land injustices and recommend appropriate redress” (Art. 67(2)).  However, the language contained in the provisions relating to land rights is unsatisfactorily vague and it is unclear how the reclamation of illegally obtained land will operate in practice.

The other ‘emotive’ issue which has been central to the debates in relation to the proposed draft is that of the jurisdiction of the Khadis’ courts. These are the Muslim courts in Kenya which have jurisdiction in a certain limited range of matters – “personal status, marriage, divorce or inheritance” (Art 170). These courts are recognised in the current constitution.  The only material difference in the Proposed Draft is the removal of the existing territorial limit of the Khadis’ courts’ jurisdiction.  Currently, their jurisdiction is limited to the predominantly Muslim coastal territory in Kenya.  However, the Khadis’ courts’ jurisdiction remains limited under the proposed draft as such a court can only rule in cases where “all the parties profess the Muslim religion and submit to the jurisdiction of the Kadhi’s courts”.  It is not therefore a provision which is likely, as certain No campaigners have claimed, to turn Kenya into a Muslim state.

It is unfortunate that although these are the most oft-cited provisions, they are certainly not the most significant changes proposed in the draft. The Proposed Draft introduces for the first time in Kenya a system of checks and balances on executive power and reduces the power of the office of President. It also envisages a dramatic overhaul of the judiciary and proposes that government be devolved to the forty-seven newly identified counties in Kenya.

While these changes are to be welcomed, they are not without their problems.  The number of counties into which it is proposed that Kenya will be divided as part of the system of devolved government is in particular unsatisfactory to some. President Kibaki has assured persons who are discontented with the proposed county divisions that the structure can and will be reviewed if necessary and that further counties will be created at a later date if the proposed structure proves unsatisfactory.

This, in my view, is one of the challenges which the country will face in the aftermath of the referendum.  If, as it seems likely from the most recent opinion polls (66% to vote Yes; 20% to vote No; 14% undecided ), the constitution is passed, there is a significant proportion of the population who expect to reap the gains instantly.  In reality, implementation of all elements of the new constitution will not be completed until 2015 – assuming that everything runs in accordance with the envisaged timeline.  Although this may be obvious to many – a constitution is never a means to an end in itself – it relies on supporting legislation to implement its principles – the fact is that the Yes campaign has been so adamant in emphasising the myriad gains for the Kenyan people in this constitution, that it is easy to understand why many expect that by voting yes, they will see an instant improvement in their daily lives.  An example of this type of campaigning was evident at one of the last major political rallies of the campaign in Kisumu on Saturday where Vice-President Kalonzo Musyoka informed an ecstatic crowd that “We shall see a rebirth of the nation on Wednesday.”

This emphatically positive campaigning may well be what ensures a Yes vote on the fourth of August, but it could also be what causes an unfavourable result for the current government in the general elections scheduled for 2012 when the population realises that the rewards promised under the constitution have yet to be reaped.

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Written by Fiona de Londras

Fiona de Londras is a Professor of Law in Durham University. Her third book, Detention in the War on Terrorism: Can Human Rights Fight Back?, was published by Cambridge University Press in 2011. She specialises in terrorism and counter-terrorism, human rights protection in Ireland and more generally, and international criminal law. You can contact Fiona at fiona.de-londras[@]durham.ac.uk