A Majority Vote in Kenya Leads to a New Constitution

By: Christine Baker-Rodriguez

Pace International Law Review, Junior Associate

On Thursday, August  5, 2010, 67 percent of Kenyans voted to approve a new Constitution.  The main focuses of the constitution  were (1) vesting more power in local governments, (2) giving Kenyans a bill of rights, and (3) advancing land reform.  It is hoped that this new Constitution will result in reducing the corruption and changing the winner-take-all political system that ultimately has exacerbated the country’s widespread ethnic divide.

Most notable about this referendum was the peaceful process through which voters were able to take to the polls.  According to Jeffrey Gettleman of the New York Times, compared to the last election of 2007 when over 1,000 lives were lost in an aftermath of ethnic fighting, this referendum demonstrated that Kenya can run a clean election without a violent aftermath, that the losers can graciously accept defeat, that their supporters can move on peacefully and that the police and security forces can be deployed to maintain stability throughout the country.

Despite the overwhelming endorsement of the Constitution and peaceful process to approve it, this referendum nevertheless remained unchanged in one aspect – voters tended to cast their ballots along ethnic lines.  It is unclear to what extent voters were endorsing the content of the new Constitution versus simply voting with tribal affiliation.  According to Yash Pal Ghai, a constitutional scholar in Nairobi who has been working to pass the new Constitution, “This was largely an ethnic vote, but not absolutely.”  For example, in some locations where the political leadership was pro-Constitution, over 90 percent of the votes were “yes.”  The opposite was true for locations where the leadership was against endorsing the Constitution.

The next big election that Kenyans will face is in 2012 to elect the next president.  While there are signs that Kenyans are de-emphasizing the importance of ethnic identity following the upheaval in 2007 and Mr. Ghai believes that “Kenyans are getting more conscious of [the issues],” other Kenyan analysts believe that the votes will nonetheless occur in voting blocks and that the successful presidential candidate will carry at least three of the five largest ethnic groups (Kikuyu, Luhya, Luo, Kalenjin and Kamba).  It is hoped that the positive experience of this referendum will evolve into a peaceful and successful election in two-years time.

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