Kenyan Push for New Constitutional Dispensation and the Potential for Religious Divide

19th April 2010 By: ISS, Institute for Security Studies

Kenya's leading churches have rejected the country's proposed new constitution and their respective leaders have vowed to mobilize their followers to vote NO during the upcoming referendum. The referendum, according to provisions of the Constitution of Kenya Review Act 2008, is now widely expected to take place in July 2010.

The influential Christian constituency led by the influential Catholic community as well as the National Council of Churches of Kenya (NCCK) are unhappy with the articles that allow Muslim Kadhi courts as well as the one on abortion. Christians are believed to form more than 65% of the population, while Muslims are about 30 % and 5 % belong to minority religions. According to the proposed draft constitution, abortion is criminalized, but allowable where the life of the mother is threatened and only under recommendation and supervision of a qualified medical practitioner. The church, however, wants the constitution to criminalize abortion outright. On Kadhi courts, the church contends that the state and religion must remain separate and that the provisions entrenching a court that deals strictly with concerns of members of the Islamic faith amounts to a contradiction of that principle.

Three points can be read from the emerging strong positions of those opposed to the draft and those who support it. First, the divided and sharply opposing positions have the potential of dividing Kenyans not just along ethnic and political lines but also dangerously along religious lines. For many years, Christians and Muslims in Kenya have lived side by side and practiced their faith peaceful and respectfully. However, the position taken by the church leadership in rejecting the draft followed by their threat to mobilize their followers to reject the draft during the referendum is likely to be seen by Muslims in a negative light. The religious schism that is emerging is likely to exacerbate the debate and may in future lead to violence from extremists from both sides.

Muslims have declared that they will support the draft constitution come the referendum. Although it will depend on how civic education and campaigns for the opposing views are conducted, it is certain that the country, through the promise of a new constitution, has opened a new platform of potential dangerous division i.e. religious sectarianism. Now the country will not only have to deal with ethnic, class and political divides, but religious identity will become stronger than ever before.

Second, the passage of the draft constitution by the Kenyan Parliament three weeks ago revealed the total lack of political leadership and goodwill. The MPs from across the political divide failed to agree on the way to deal with contentious issues such as those touching on Devolution, Kadhi Courts, Abortion and Land. The MPs proposed over 300 amendments to the draft received from the Committee of Experts. No single amendment was passed by the MPs because of a lack of political leadership, goodwill and foresight. The consequence of this indecision is that the very same MPs will now have to go to their supporters and mobilize them to support or reject the draft come the Referendum.

The draft constitution is now in the hands of the Attorney General who must publish it before mid May 2010 and cannot amend or alter it. The political elites from across the political divide are already mobilizing their supporters to either vote for or reject the draft. Majority political elites thus far are in favor of the draft.

Third and lastly, the proposed constitution has further exposed the fragile position of Kenya as a nation state. The disputed 2007/8 presidential elections led to political chaos that witnessed the country slide on the brink of full perdition. Over 1500 lives were lost and many people were internally displaced. The country is yet to fully heal from the effects of that bungled election. Perpetrators of the violence are yet to face justice. Survivors are yet to heal fully.

The proposed constitution is an imperfect document. To be sure, over 300 amendments were proposed by the MPs. The politicians failed to discharge their responsibility and allowed a contested document to pass to the Kenyan public. This document has already ignited passions witnessed during the 2005 failed referendum on the constitution. Ethnic and political factions are emerging strongly, further weakening and entrenching Kenya as an unstable nation state. The fragility of the country is now increasingly going to be exacerbated as the opposing positions on the draft constitution go full throttle.

Kenyans will have to vote for or reject the proposed draft constitution some time in July 2010. The build up to that day has begun and the country's search for a new constitutional dispensation may this time be realized, given the opinion polls reports and intensity of campaigns emergent from the supporters of the draft led by the political class. However, this imperfect document will not leave the country unscathed. The document has already planted seeds of division on religious grounds and this is not good for a country that continues to experience sharp ethic, racial and political schisms.

Written by: Isaack Otieno: Head Corruption and Governance Programme, ISS Cape Town