Years-Long Campaign for New Kenyan Constitution Ends in Failure

Nairobi, Kenya - Kenyans have voted against a proposed new constitution that would have increased the president's powers, allowed the creation of religion-based courts and paved the way for the possible legalization of abortion.

The draft constitution was defeated in a 57 to 48 percent vote on Monday, which was the climax of a decade and a half of political agitation for a new constitution.

President Mwai Kibaki, who supported the "yes" campaign, said the search for a better document would continue "although the focus now should turn to development."

The constitutional debate has divided Kibaki's government, with seven of 27 cabinet ministers opposing the document and several others taking a neutral stance.

The process effectively put on hold the government's focus on development and has held back Kenya's economic growth, currently averaging five percent annually, according to the investment firm, AIG East Africa.

Political analysts here say the rejection of a constitution which had the backing of the president pointed to a loss of confidence in the administration and could be an early warning sign for Kibaki's re-election chances in December 2007.

Politics professor Raphael Wanyande said the defeat should signal to Kibaki the need to "connect" more with the people and make good his pre-election promises, in particular those about raising living standards.

Lawyer Patrick Lumumba, secretary to the Constitutional Review Commission - the body charged with offering expert advice on the review process - said the vote outcome was a sign that "democracy has matured in Kenya."

The division within the cabinet led some Kenyans to expect that the president would sack dissenting ministers, but in his speech conceding defeat, Kibaki gave no sign that he intended to do so.

"One of the main strengths of this administration is that it has a tolerant president," the Nairobi-based Institute of Policy Research and Analysis said in an assessment of Kenya's strengths and weaknesses.

"Kibaki does not sack people just because they hold a different view," said social scientist Phyllis Wambui. "He is a true democrat."

Kenya's existing constitution was drawn up shortly before the country attained independence from Britain in 1963.

The proposed new constitution would not have legalized abortion but at the same time gave space to parliament to pass legislation to change the current abortion law.

The document now rejected also reserved one-third of the seats in parliament for women, and upheld equality of men and women in all social and economic areas, including property rights.

While many women welcomed the focus on equality, some, like cabinet minister Lina Chebii, opposed it, saying for instance that the culture of her tribe did not allow women to inherit property in their place of birth.

During the drafting and consultation process, Muslims had called for the constitution to entrench the right to Islamic courts. Opposition to such a move resulted in a provision allowing "religious courts" - Muslim or otherwise - to rule in a range of family and private cases.

Muslim leaders rejected that compromise and welcomed the defeat of the constitution.

Some opponents said the rejected document gave too much power to the president. Memories of the dictatorial tenure of former president Daniel arap Moi, Kibaki's predecessor, remain fresh here.

'People not sufficiently informed'

Foreign observers, including 42 Americans, who monitored the referendum, termed it as a free and fair.

However, several local non-governmental organizations argued that civic education programs, which were supposed to have informed Kenyans about the proposed new constitution, had been inadequate.

Several Kenyans interviewed by Cybercast News Service appeared not to distinguish between the referendum and an election.

Moses Omondi, a 27-year-old industrial worker here who joined "no" campaigners celebrating victory said he hoped that "life will be better now that the ["no" campaign] has won."

Lyida Kathiani, a charcoal dealer and a mother of five, said although she had not read the proposed constitution, she decided to vote against it "because my business is not doing well."

"Life is hard under Kibaki. There is not [enough] money," Kathiani added.

Commentators here attribute the defeat of the constitution to political differences which have roiled the ruling coalition since it took office in early 2003.

Critics accuse Kibaki of failing to honor a political memorandum of understanding pledging to make a politician named Raila Odinga a cabinet minister, and one of his cabinet ministers, Kalonzo Musyoka, deputy vice president.

Odinga has led the "no" campaign, and Musyoka has also supported it.

"It was more of a political vote than for or against the constitution," said David Wandia, a media researcher.