Referendum Question could reunite Kenya

The IIEC seems to be the only body that can unite Kenyans now. Soon the ball will be in their court as they take over the heavy responsibility of organizing and conducting the referendum. But despite the polarized status that the country seems to be stuck in while debating on the contentious issues of the Proposed Constitution, a solution that could unite Kenyans can still be found. That solution is in the manner in which the Referendum Question will be framed.

So far Kenyan tempers have been so high because everyone has taken it for granted that the question to be answered at the referendum will simply be whether or not the people will accept or reject the Proposed Constitution. But that does not necessarily need to be the case. The Referendum Question could in fact be framed in such a way as to put into consideration the views of all Kenyans, including those who oppose the Proposed Constitution in its present form.

The question posed to the people of Kenya need not be so simplistic like: “Do you accept the Proposed Constitution?” Such a simple question will tear the country into the same camps that are now debating for and against the Proposed Constitution. A referendum based on that question will end up with winners and losers. Though for the time being the “YES” vote, based on that simple question, seems to have the upper hand as it is backed by all the political giants including the President and the Prime Minister, the “NO” vote, based on that same question, could still be strong as it is led by the dissatisfied Clergy which, it must be admitted, has quite a considerable backing in many parts of the country.

Given the fact that the Clergy openly says it supports the Proposed Constitution without the two controversial issues of the Kadhi courts and the Articles on abortion, its stand could easily be changed if the Referendum Question is posed differently. The Clergy will have no alternative but say “YES” when asked a question like: “Do you accept the Proposed Constitution with amendments on Articles on Kadhi courts and Abortion to be introduced later?” Unless they have another hidden agenda churches would have a tough time to say “NO” to such a question. The promise of introducing the amendment later is inevitable as the Proposed Constitution can simply not be amended before the referendum.

The next most important step for the country to take to achieve a new constitution is to think of the Referendum Question now. Section 37(1) of the Constitution of Kenya Review Act of 2008 says the Interim Independent Electoral Commission shall within seven days of the publication of the draft Constitution by the Attorney-General frame and publish the question to be determined by the referendum.

The time to agree on that question is now when the Clergy and the State are still talking. Section 37(2) says the question referred to in subsection (1) shall be framed in consultation with the Parliamentary Select Committee. Members of the PSC who have been secretly supporting the Clergy can support the Church by helping the IIEC to come up with a question that is backed by everyone. Subsection (3) of the Act says the question to be submitted to the referendum shall require the voter to indicate whether the voter approves or does not approve the Proposed New Constitution and shall be so framed as to require the answer “Yes” or the answer “No.” Kenya must not lose the opportunity to come up with experts who can frame the required question that can get a “YES” or “NO” answer but at the same time make a promise of immediate amendment of the contentious issues after the referendum.

The suggestion I am making could, in my opinion, save the situation but there is still a danger. Those who would like to weaken the parts of the Proposed Constitution, that makes them spend sleepless nights, may jump on the bandwagon. They may, for example, propose that some non-contentious Articles they want amended for their own selfish reasons be included in the proposed question together with the Articles on abortion and the Kadhi courts. These are the people who are dissatisfied with parts of the Proposed Constitution meant to bridge the gap between the haves and the have-nots such as land issues. Framer of the Referendum Question should ignore this group as their main goal is to wreck the whole exercise.

Kenya will be going to the referendum with many disgruntled people with lots of problems they expect the Proposed Constitution to solve. Those who are rejecting it because of its land policy are however not sincere. Their reason for rejecting the land policy proposals of the new constitution are extremely selfish because the current Constitution is enormously unfair to the wananchi who continue to be landless while a handful own huge tracts of land they don’t even utilize gainfully. These are the same people who wanted to use the demotion of William Ruto from the Ministry of Agriculture to the Ministry of Higher Education to mobilize the people to reject the Proposed Constitution.

The demotion of William Ruto must not be confused with constitutional matters. The Prime Minister has always wanted to move Ruto from the Agriculture Ministry and he has stated so in public. Earlier this year it took President Mwai Kibaki to reinstate Ruto after he was suspended by Raila on alleged corruption charges. Those allegations against Ruto are still there. Refusing to vote “YES” for the Proposed Constitution because William Ruto has been demoted is being extremely myopic.

The country is lucky that the Clergy and the State are still negotiating on the manner in which the Proposed Constitution could be salvaged. One of the ways of convincing the Clergy to back the “YES” camp is to give the church leaders an opportunity to take part in the framing of the Referendum Question. Debating on the amendment of the Proposed Constitution before the referendum is a waste of time as much as it is legally most cumbersome. Naturally there are some people, led by the former President Daniel arap Moi, who would like to see the State-Church talks collapse. Their reasons are extremely selfish and are based of the land policy suggestions of the Proposed Constitution.

There are a number of people in Kenya headed by Vice President Kalonzo Musyoka who actually back the Proposed Constitution but would not like the country to go to the referendum while it is still dangerously polarized. The way to reunite the country, which is now being threatened to be torn apart, as it was in the last referendum of 2005, is to come up with a Referendum Question acceptable to all. The targeted groups for accepting the well thought-out and phrased Referendum Question should be the churches rather than the politicians who will never seize to have an axe to grind.