Since a disputed election in 2007, Kenya has been plagued by social unrest and political instability. Last week, voters approved a new constitution — a hopeful sign that the country is heading toward political reconciliation and economic development.

JOEL D. BARKAN is Professor Emeritus of Political Science at the University of Iowa and Senior Associate at the Africa Program of the Center for Strategic and International Studies. MAKAU MUTUA is SUNY Distinguished Professor and Dean of the SUNY Buffalo School of Law.

Fear and Loathing in Nairobi

John Githongo

Kenya was once Africa’s poster child for stability and growth. Then, in late 2007, it descended into ethnic violence. The current coalition government has not solved the underlying problems of corruption and inequality, and ethnic resentments are likely to remain until Kenyans elect a clean and inclusive government.

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In a historic referendum on August 4, nearly 70 percent of Kenyan voters approved a draft for a new constitution, an outcome that raises the prospects for peace and stability in East Africa’s anchor state and in the surrounding region. Ratification of the new constitution also returns Kenya to the path of democratization and economic growth — a path that was disrupted by the mass violence that threatened the viability of the state following the disputed presidential election in December 2007. In contrast to that election, the referendum was peaceful and well run by the country’s reconstituted election commission.

The new constitution is undoubtedly the best of the multiple proposals and drafts that have been considered in Kenya since the early 1990s, when the nation returned to multiparty politics after nearly three decades of single-party rule. Since then, democratic activists have viewed a new constitution as essential for the consolidation of democracy. As in South Africa after the fall of apartheid, protracted discussion and negotiations — and no doubt some fatigue — led to a grand compromise supported by most prominent members of Kenya’s political class. These include President Mwai Kibaki and Prime Minister Raila Odinga, bitter rivals in 2007 who came together to form Kenya’s power-sharing government to halt the postelection violence.

Their agreement, brokered by former UN Secretary-General Kofi Anan in February 2008, included the promise of a new basic law that would address long and deeply held ethnic grievances over land and the distribution of state resources. In an alliance unimaginable six months ago, Kibaki and Odinga barnstormed the country together to support the passage of the new constitution.

In at least four respects, the new constitution is a major improvement over the current one, which has governed Kenya since 1964. First, it vests coherent executive authority with the president rather than splitting authority between the president and the prime minister, as is the case in the current power-sharing government. However, it strips the presidency of the powers and patronage that fueled dictatorial rule and kleptocracy under former President Daniel arap Moi in the 1980s and 1990s.

All major presidential appointments — including members of the cabinet, the judiciary, senior bureaucrats, and ambassadors — now require confirmation by the National Assembly. The size of the cabinet will be cut in half and limited to 24 members. The president will no longer have the power to suspend or dissolve the National Assembly, as its members will be elected to fixed five-year terms. The election commission will also be truly independent and beyond presidential control.

Second, the constitution greatly enhances the power of parliament in relation to the president. The assembly will have the power to summon cabinet ministers and senior civil servants for hearings, significantly increasing its oversight of the executive branch. Also, the legislature will now have the discretion to impeach the president. The National Assembly — 90 percent of whose members are currently male — will have at least 47 elected women, one from each county (18 members, or 27 percent, of the newly created Senate will be women).

Protracted discussion and negotiations — and no doubt some fatigue — led to a grand compromise supported by most prominent members of Kenya’s political class

Third, by creating 47 elected county governments that will be guaranteed revenue from the center, the constitution provides for a financially viable system of devolved government to address the long-standing inequities among Kenya’s 42 ethnic groups. This devolution of power will protect the interests of the smaller ethnic groups while assuring accountability for the larger ones.

And by providing for a more equitable sharing of national resources, such an arrangement will diffuse the basis for the ethnic strife that has bedeviled Kenya since independence in 1963. Devolution is also likely to break up the concentrations of power wielded by Kenya’s largest ethnic groups, particularly the Kikuyu, the Kalenjin, the Kamba, the Luo, and the Luhya — who together comprise 70 percent of the country’s population.

Fourth, the constitution, patterned on South Africa’s, contains an ambitious bill of political, economic, and social rights. It includes provisions to protect women, marginalized groups, and people with disabilities. It also calls for the creation of a commission to address the historically contentious issue of land rights and land ownership, which has been a perennial source of conflict since the colonial era.

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