Kenyan constitutional referendum, 2005

The 2005 Kenyan constitutional referendum was held on 21 November 2005. The proposed new constitution was voted down by a 58% majority of Kenya's voters. Many government officials, including President Mwai Kibaki, had campaigned for a 'Yes' vote on the constitution, which divided the ruling National Rainbow Coalition into camps, for and against the proposal.

Due to the high number of illiterate voters in Kenya, votes are typically cast using symbols rather than text to indicate a preferred candidate. Thus, those who supported the constitution were assigned the symbol of the banana, while the opposition were assigned the orange as their means of representation.

The referendum divided Kenyans and spurred violence between Orange and Banana supporters; nine people died during the campaign period spread over several months, but the process itself was peaceful.

Pre-voting situation

The main issues of contention throughout the drafting of the constitution were over how much power should be vested in the Head of State (the President, in this case), with many believing Kibaki was attempting to garner dictatorial powers. In previous drafts, those who feared a concentration of power in the president added provisions for European-style power-sharing between the President and Prime Minister. However, the final draft of the constitution retained sweeping powers for the Head of State.

The issue of land reform has also been prevalent, as disputes over land amongst Kenya's numerous ethnic groups are frequent. The draft constitution sought to deal with this and included measures against the ownership of land by foreigners (white immigrants and their descendants own numerous large tracts of land in Kenya). The constitution would have also permitted women to own land for the first time (only through inheritance) and sought to establish a 'land commission' which would manage and oversee the redistribution of land (the formation of the land commission was included primarily as a means of preventing the 'gifting' of land by government officials for favours). The land commission would also serve as a human rights watchdog over land disputes and would attempt to give back land to ethnic groups and individuals who have unfairly lost land in the past.

The constitution sought also to classify land as either "government, community, or individual" property. Many have been alarmed by a more radical provision which would allow the land commission to redistribute land that is 'idle' or not being used to its fullest potential to the landless and squatters. This met the most resistance amongst absentee land owners, and nomadic groups such as the Maasai, whose land could potentially be repossessed.

'Religious courts' were also an area of concern prior to the voting. Since Islamic religious courts already exist in Kenya, demands for courts specific to other religions (mainly Christian and Hindu) were adhered to and the draft constitution provided legal basis for a number of religious judiciaries.

Because Kibaki so vigorously promoted the new constitution and based his election campaign around it, many voters used the referendum merely as means to voice their approval or disapproval of the Kibaki government. In other words, many paid little attention to the actual text of the constitution and used the 'Yes' or 'No' vote to say 'Yes' or 'No' to the president. This would become the sentiment on which the victorious Orange camp would base their demands for snap-elections, claiming the government had lost its mandate to rule as a result of the 'No' vote by the people.

There was a single opinion poll taken: 42%(No) and 32%(Yes) and Undecided (22%) & Refused to answer (4%) [ [http://www.eastandard.net/archives/cl/hm_news/news.php?articleid=30953&date=22/10/2005 Orange in the lead] "The Standard", October, 21 2005 (Poll by Steadman International)]

Results

Ballot Question: Are you for or against the ratification of the proposed new constitution?

Provincial Results

Political fallout

After voters rejected a draft constitution, President Mwai Kibaki dismissed his entire cabinet and deputy ministers, moving quickly to reassert his political authority. [http://news.bbc.co.uk/1/hi/world/africa/4463262.stm] [http://today.reuters.co.uk/news/newsArticle.aspx?type=worldNews&storyID=2005-11-23T234823Z_01_MCC385671_RTRUKOC_0_UK-KENYA.xml]

Of his decision Kibaki said, "Following the results of the Referendum, it has become necessary for me, as the President of the Republic, to re-organise my Government to make it more cohesive and better able to serve the people of Kenya."

Although the dismissal of individual officials is commonplace in government, the dissolution of the cabinet in its entirety is rare. The only member of the cabinet office to be spared a midterm exit was the Attorney General, whose position is constitutionally protected against Kibaki's presidential powers. Vice President Moody Awori retained his post, however, he has been deprived of his position as Minister of Home Affairs. The dismissal of the cabinet follows a seven month period in which its members never actually met formally, instead preferring to play political games with one another through the media. Kibaki has pledged to appoint a new cabinet within two weeks, until then he will be managing the nation's affairs single-handedly. [http://allafrica.com/stories/200511230844.html]

The cabinet has been increasingly divided for an extended period of time, the issue of the constitution has created further fracturing. Because the National Rainbow Coalition is a grouping of several smaller parties (Democratic Party, Forum for the Restoration of Democracy-Kenya, Liberal Democratic Party, National Party of Kenya), members of the Kibaki government maintain differing agendas and loyalties, often maintaining more loyalty to their party than to the Coalition. Corruption charges and investigations into the affairs of the cabinet had gone undisciplined by the president "(more information can be found on the Mwai Kibaki page)", who had been criticised for not reeling in his officials.

The response to the sacking of the cabinet and ministers by Kenyans, as a result, has been overwhelming positive. However, the opposition spearhaded by the Orange Democratic Movement (whose key members consist of a number of MPs from the now moribund cabinet) has expressed that Kibaki has not gone far enough and a dissolution of both the Legislature and Administration is necessary. This combined with the referendum's failure and Kibaki's inability to deliver on his campaign promises has caused an increase in demands for new elections for the entire Kenyan government, with the people turning against both the Kibaki administration and Legislature. [http://www.afrol.com/articles/17405]

After rallies on 27 November, 2005 by the opposition demanding new elections as soon as possible, the Kenyan government has outlawed all demonstrations in support of new elections. The Kibaki government has dismissed the idea of early elections, and claims such gatherings are a 'threat to national security'. The opposition is now encouraging nationwide pro-election demonstrations and has scheduled an Orange team led rally at Mombasa Municipal Stadium for 10 December. [http://news.bbc.co.uk/1/hi/world/africa/4477250.stm] The government has since called in police to seal off access the Stadium and prevent the rally from taking place. All other pro-election rallies throughout the country will also be clamped down on by law enforcement. [http://allafrica.com/stories/200511291495.html]

Former minister and Orange team leader Najib Balala claims the ban on Orange-led demonstrations is unacceptable because "According to the IPPG meeting in 1997, only the minister for Internal Security has the right to cancel a political meeting for security reasons. As I speak, we have no minister for Internal Security and our meeting is basically a thanksgiving event". [http://allafrica.com/stories/200511281107.html] Additionally, Kibaki has postponed the reconvening of the Legislature, which was scheduled to resume its affairs on 6 December. In all likelihood this is an attempt on Kibaki's part to prevent the Legislature from supporting new elections, however, most of the Kenyan MPs are hesitant to support early elections fearing they will lose their positions. [http://allafrica.com/stories/200511281059.html]

Cabinet appointment

On 7 December, 2005, exactly the two weeks he had promised to do so within, President Kibaki announced his new appointments for his Cabinet and empty minister positions. However, almost immediately a large portion of the appointees turned down the job offers, at least 19 MPs are said to have rejected the appointment. Many of those who turned down positions were members of FORD-Kenya and the NPK parties, who constitute the political backbone of Kibaki's regime. Both Ford Kenya and NPK have formally withdrawn their support for the Government, resulting in the rejection of the high-level posts by their MPs. Many are citing a failure on Kibaki's part to consult with other member parties of the Coalition regarding the make-up of the new cabinet as the principal cause for the divergence within the Coalition. Many feel the President has instead made appointments as he pleases.

Ignoring the deepening crisis, on 9 December,2005, Kibaki carried out the official swearing-in of the new cabinet made up almost exclusively of his closest political friends. With support for Kibaki and his allies crumbling, a vote of no confidence against the Government in the Legislature is not out of the question. Kibaki's government now faces opposition from KANU, the Orange Team, FORD-Kenya, and the NPK. A vote of no confidence would force snap-elections for the entire Kenyan government. [http://allafrica.com/stories/200512090528.html] [http://allafrica.com/stories/200512100102.html]

References