Solomon A Dersso, senior researcher, Peace and Security Council Report Programme, ISS, Addis Ababa

On 4 August 2010, Kenya held a historic constitutional referendum in an attempt to endow the country with a democratic constitution. Kenyans went to polling stations as early as 5 am and stood in long queues that stretched for hundreds of meters. This is seen by many as an opportunity not only to address the flaws in the political structure of Kenya that underpinned the 2007/2008 post-election violence but also to meet the demand of Kenyans who clamoured for a democratic constitution for over twenty years.

In contrast to the 2007 elections, the referendum was conducted in an atmosphere free from allegations of rigging and fraud. The electoral commission was restructured. A new and coded voter-identification and transparent ballot boxes were also used. Except some reports of intimidation in some parts of the country, the voting process was peaceful and smooth.

It is predicted that the constitution will be approved by a majority of Kenyans. Speaking to the BBC, Kenya’s Foreign Minister Moses Wetangula expressed his hope that a minimum of 60 percent of the voters will approve the constitution.

The constitution, although far from complete, is expected to introduce some important changes. It cuts the power of the President, beefs up the oversight role of parliament, vests the judiciary with the power of judicial review and introduces important checks and balances. The constitution also seeks to devolve power away from the centre to the regions, creating two levels of government: national and county governments. Most importantly, it also promises to deal with the most contentious issue of land. The constitution also attempted to restructure various institutions of the State such as the Electoral Commission.

While Kenyans and their friends deservedly breath a sigh of relief with the holding of the referendum without major incidents, many rightly also feel that this is just the beginning. Indeed, despite the fact that Kenyans listened to the President’s call and held a peaceful referendum, the risk of violence is not yet over. In some of the hot spots, particularly the Rift Valley, issues surrounding vote counting and the results may trigger some violence. This is the first and immediate challenge for Kenya.

The other challenge for Kenya is the institutionalisation and full operationalisation of the various institutions and structures of government envisaged by the constitution.

The most important challenge that will take some time and a great deal of work from all sections of society is overcoming the entrenched culture of political corruption and lack of rule of law and constitutionalism.

Constitutionally speaking, this is as serious a problem as having a bad or weak constitution. Although the limitations in the current constitution can be said to have significantly contributed to the troubles that continue to afflict the country, the nature of politics practiced by Kenyan politicians is also to blame. The Manipulation of ethnicity, disregard for the rule of law, the abuse of public office, corruption, and the socio-economic and political injustices inflicted on various sections of Kenyan society, are recurring issues that have been exacerbated by divisive domestic politics.

Clearly, while having a just and effective constitution is important, constitutional change, of itself, cannot be expected to serve as a panacea for all of Kenya’s social and political woes. As a prominent Kenyan constitutional scholar observed, the constitution does not have arms and legs of its own to be able to transform

Kenya. For the constitution to effect the required changes, it needs much more than a re-design of institutions and the re-structuring of political power. It also requires, equally if not more importantly, a culture of constitutionalism, a culture of respecting the rule of law and abiding by the dictates of the constitution and its values.

The potential approval of the draft constitution is therefore only the first step, albeit a necessary one. It is however inadequate to prevent the recurrence of violence or a crisis of governance in Kenya. The extent to which the constitution is made to transform political discourse in the country and the way state institutions operate and relate to citizens are crucially important. It seems clear that significant change is still required. Even after the 2007/2008 violence, old style politics have continued to dominate the political landscape of the country. Until now, nobody has been held accountable for the deaths of more than 1300 people and the displacement of many more as a result of the post-election violence. Many of the issues underlying the 2007/2008 violence such as the manipulation of identity for political ends, ethno-regional inequality, ethnic or political patronage or nepotism, abuse of public offices, the land question and corruption, have yet to be resolved.

Optimism about the outcome of the constitutional referendum should therefore be cautious. It is necessary to adopt a wait and see policy in order to assess how events will ultimately unfold, not only in terms of the constitutional referendum but also in the run up to, and during, the 2012 elections.

In holding the referendum peacefully, Kenyans have taken the important first step towards achieving a true constitutional transformation in Kenya. This marks the beginning of the difficult chapter of translating the constitutional promise into reality.