Kenya Struggles To Create New Constitution

Following a deadly power crisis that was resolved when Kenya's leaders agreed to work together, efforts began to craft a new constitution. But it's a messy procedure. Promising a new constitution and delivering one are two very different things.

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Post-election violence in Kenya killed more than 1,000 people and displaced hundreds of thousands. Then the nation's top leaders made nice together. Today there's a grand coalition government, plans for a new constitution. As NPR's Gwen Thompkins reports, drafting a constitution in Kenya is about as messy as writing left-handed with a quill pen.

GWEN THOMPKINS: In the course of human events, a nation must look to its constitution for guidance. A constitution is not only a set of laws or an outline of the powers and structures of government. The best constitutions remind people of who they are and what they stand for. And by that standard, Kenya does not have one of the better constitutions. Ben Sihanya teaches law here at Nairobi University. He says an early form of the document from 1964 had more of a democratic "we, the people" kind of feel. But Sihanya says the nation's founding fathers mutilated the constitution.

Dr. BEN SIHANYA (Senior Law Lecturer, Nairobi University): The constitution is being mutilated from 1964 to make an empire in a republic, a republic under an imperial president.

THOMPKINS: Today's constitution gives Kenya's president virtually unchecked power. And many say that's part of the reason why elections here are so violently contested. The president is like the Sun King of Kenya whose benevolence has a direct impact on the lives of nearly 38 million individuals. Dan Juma is a constitutional expert at the nearby Kenya Human Rights Commission.

Mr. DAN JUMA (Deputy Executive Director, Kenya Human Rights Commission): The presidency is viewed as a do or die institution. You either have access to it, or you're in political oblivion for the next five years.

THOMPKINS: Like the United States, Kenya was colonized by Britain before becoming independent. The country became a republic in 1964. But Kenya's constitution had heavy British input. Britain still had citizens here and wanted to protect them and their property. The nation's first constitution favored strong regional assemblies working with the central authority, something people here call majimboism. The idea was to allow racial and ethnic minorities to have a say in sharing the nation's resources. But Sihanya says that Kenya's first president, Jomo Kenyatta, and his allies began amending the constitution almost immediately upon taking office.

Mr. JUMA: By '67 all the majimbo regional structures are dead, within three years.

THOMPKINS: During Kenya's last constitutional review in 2002, Dan Juma helped interview thousands of ordinary people across the country. The upshot was that they wanted more regional and local power. In short, they wanted some form of majimboism. But Juma says the process was ultimately spoiled by political self-interest. The language of the draft constitution put before voters in 2005 reflected more of the same, a strong central government and an imperial presidency. So, to the embarrassment of Kenya's president, Mwai Kibaki, the referendum failed. And Kibaki's defeat empowered Raila Odinga, the then opposition leader. Odinga ran for president in a bitter race last year. He is now prime minister in the grand coalition.

Prime Minister RAILA ODINGA (Kenya): In my view, the dramatic events that followed the December 2007 general elections created a constitution making moment for Kenya. These events clearly demonstrated the fragility of our nationhood.

THOMPKINS: That's Odinga speaking recently at an international conference on constitution making in Nairobi. President Kibaki was also here at the conference, promising to deliver a constitution well before the next elections in 2012. Dan Juma says he hopes the new document will pare Kenya's imperial presidency down to a size that better fits a democracy. And toward that end, he says the new constitution needs a really good preamble, something that has a "we, the people" kind of flavor.

Mr. JUMA: This new constitution should address the issues of nationhood by distilling out and precisely and succinctly mentioning certain values that the Kenyan people aspire towards, be they values of human dignity, be they values of autonomy, be they values of democracy, and what they mean by that.

THOMPKINS: Juma says that establishing shared values promotes a sense of nationhood in a place where people tend to cherish their ethnic ties and religious beliefs before their citizenship. It's the only way, he says, to form a more perfect union in Kenya, or at least it's a start. Gwen Thompkins, NPR News, Nairobi.

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