The constitutional referendum is done and dusted, and the ‘Yes’ side led by President Kibaki and Prime Minister Raila Odinga scored a resounding victory.
The ‘Yes’ side, with its 70 per cent of the vote, swept seven of the eight provinces, and ‘No’ managed 30 per cent – and Rift Valley as the only province where they triumphed.
To their credit, the ‘No’ camp, led by Higher Education minister William Ruto, former president Daniel arap Moi, Catholic Cardinal John Njue, and NCCK general secretary Canon Peter Karanja, have avoided wallowing in the bitterness of defeat. Mr Ruto came out to concede victory to the ‘Yes’ side.
While the victor’s trophy will be in President Kibaki’s cupboard, and history will credit him as well as Mr Odinga and many other campaigners for reform over the last 20 years with achieving a new constitution, in the goodness of time historians will have to acknowledge that the lasting glory of this referendum belongs to the ‘No’ campaigners.
A constitution is a big ideological matter, and the fault line between the old order a fresh constitution is seeking to replace, and the new era it aims to usher in is usually very clear. In the early months of the referendum debate, this clear line was not visible.
One of a few things changed that – Mr Moi’s entrance into the fray. He became the symbol of the “old Kenya”. The Moi factor helped make the issues at stake very clear, and it seems to have been one of the principle factors that forced the fence-sitters -- the watermelons -- to fall on the ‘Yes’ side.
After the draft was published, there was an arrogant complacency on the side of the reformists. The virtues of the draft constitution were deemed to be self-evident.
The ‘No’ side changed all that. My sense is that, in the end, most of the people who read the constitution did so because of the controversy over the issues of the kadhis’ courts, abortion, land and devolution.
The only way serious people could be sure which side was lying to them was to read the constitution. The referendum results suggest that when people read the draft, most of them liked what they found there. The ultimate irony, you would say. If the ‘No’ side had not opposed the draft as hard as it did, it might have done much better at the ballot box!
And because so many people read the constitution-- opinion polls say over 50 per cent did--constitutional ownership and knowledge of the new law is higher, which is good for democracy.
There is a Ugandan saying that the person who is chasing you (in order to finish you off) is the one who shows you the escape routes you never realised existed. The ‘Nos’ showed the ‘Yes’ camp the road to victory.
The UN and several Western embassies were issuing advisories about the likelihood of violence after the vote, based on the experience of the mayhem that followed the 2007 elections. All the advisories I saw agreed that the Rift Valley was the one place to avoid. Because it had been the flash point in the post-election violence, it was expected that Rift Valley would burn again.
The result was that civil society groups and the security services put an incredible amount of work into studying and documenting which groups were arming, and the areas that were likely to blow up.
The government responded with a disarmament exercise, and human rights groups invested a lot of energy in confidence-and community-building. And in the lead-up to the referendum, the government flooded the Rift Valley with security forces.
If Mr Ruto, Mr Moi and the church leaders (some of whom were the leading merchants of violence in the Rift Valley in 2008) hadn’t emerged as the most outspoken critics of the draft constitution, perhaps the Rift Valley wouldn’t have been in the sights of the security forces and civil society groups—and could have erupted. Who knows? In a bizarre way, then, Ruto & Co. made it possible to prevent violence.
The democracy movement of the 1980s and 1990s was marked by the high profile involvement of church leaders. And, indeed, while there was criticism this time about the churches’ opposition to the draft, there were many men and women of the cloth on the ‘Yes’ side , the Rev Timothy Njoya being one of the most prominent examples.
The main criticism of the churches and church leaders like John Cardinal Njue and Canon Karanja is that they had crossed the line and got involved in platform politics. Church leaders, the argument went, can preach politics from the pulpit, not the pavilion at Uhuru Park.
Everyone seems to agree that the church should have some role in politics. The dispute is over how much, and the form. No secular country has democratically agreed on the parameters for the activity of religious leaders in politics.
Therefore the benefit Kenya got from the church being one of the leaders of the ‘No’ side is that the country has moved closer than most in defining the line between church and state going forward.
After the defeat, I think in the future most religious leaders will first build a consensus in their own churches before taking on politics.
But, most importantly, there is understanding that a section of, say, Catholics, cannot align with a few evangelicals and present their stand as that of all churches. So the lesson the referendum has taught is that the “church” is credible only as a broader and more democratic construct.
The ‘Yes’ side, too, must be aware they had a lucky escape on this. If all religious groups had united to oppose the draft constitution, it would have been drowned.
It’s unlikely, therefore, that in the future anyone will attempt a political and social re-engineering project--which is what the new Kenya constitution is--without a minimum consensus with organised religion, even though that may not be the best thing.
My further reading is that the opposition to the kadhis’ courts permitted a conversation between Islam and Christianity in Kenya that no other country has undertaken since the 9/11 terrorist attacks threw up the idea that the 21st century would be defined by a “clash of civilisations”, mainly between radical Islam and Christianity.
The stigmatisation of Islam as a terrorist religion of recent years has led to different responses. In countries where Muslims are a minority, they have tended to rally around the strength of their faith, rather than argue their case.
The sharp attacks against the kadhis’ courts took a few Kenyan Muslims aback. And, ultimately, the issue would have derailed the constitution if Christians had not come to the institution’s defence.
The virulent attacks on Muslims and the kadhis’ courts, especially in the blogosphere, shocked enlightened Kenyan Christians and agnostic progressives and energised them to defend the courts as a deserved minority right.
I doubt that any group of Christians anywhere has been called upon to defend something dear to Islam as happened in the referendum campaigns. And they didn’t disappoint.
One would be running ahead of oneself to claim at this point that that will lead to more mainstreaming of Islam and forever disarm the radical tendency in the Kenyan Muslim community.
But it is safe to bet that Muslims are likely to get more comfort from this constitution than are fundamentalist Christians. Now, not even God could have planned ahead for that outcome.