Kenya's new constitution

Journal of Democracy

Volumn 22, Issue 2, 2011, Pages 89-103

  Kramon, Eric ^a   Posner, Daniel N ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 80051652854     PISSN: 10455736     EISSN: 10863214     Source Type: Journal    
DOI: 10.1353/jod.2011.0026     Document Type: Article

References (19)

1. Ruto has since been forced to step aside as higher-education minister while he answers charges in a corruption investigation.
2. The issue of devolution in Kenya dates back to the run-up to independence in 1963. Daniel arap Moi, then the leader of the Kenya African Democratic Union, joined other Rift Valley politicians in backing majimboism (regional autonomy), while Jomo Kenyatta and his Kikuyu allies supported centralized rule.
3. For a discussion of the flawed 2007 elections, the violence that followed, and the February 2008 power-sharing agreement that ended the violence.
4. see Michael Chege, "Kenya: Back from the Brink?" Journal of Democracy 19 (October 2008): 125-39.
5. The PSC did, however, add several constraints on presidential power. These included parliamentary approval of ministerial appointments and a requirement that members of parliament resign before joining any presidential cabinet.
6. Thus it was Ruto, a strong, longtime proponent of devolving power to the subnational level, who led the KANU faction of the ODM toward accepting the presidential system.
7. The source of the rift lay in Odinga's support for the recommendations of the Committee of Inquiry into the Post-Election Violence that a special tribunal be set up to try perpetrators of the election violence. Ruto, along with several other politicians who feared being targeted, strongly opposed the creation of the tribunal.
8. One of the most controversial other issues taken up by the PSC was the question of judicial reform. The CoE document called for all sitting judges to be vetted by an independent commission as part of the judicial-reform process. Under intense pressure from sitting judges, the PSC rejected this plan, claiming that the judges were likely to boycott it and thus create major problems for the courts and the broader administration of justice. The CoE, however, did not find this logic compelling, and the proposed constitution ultimately found a middle ground: It required that parliament, within one year, should establish a process for vetting all sitting judges and magistrates. The PSC also scaled back the CoE's proposed dissolution of the system of Provincial Administration (the PSC merely called for it to be reformed and harmonized with the new system of devolved government-a position ultimately adopted by the CoE), expanded the number of parliamentary seats from 210 to 290, and added language to the Bill of Rights that life begins at conception and that abortion would be legal only in cases where medical professionals deemed a mother's life to be in danger.
9. Before independence, Jomo Kenyatta signed a formal agreement between the (soonto-be) government of Kenya and the Sultan of Zanzibar in which Kenyatta agreed to acknowledge the authority of the Kadhis' courts and to protect the freedom of Muslims to worship. In exchange, the coastal strip, which had before colonial rule been under the jurisdiction of the Sultan of Zanzibar, would become part of the independent Kenyan state. In part because of this agreement, all draft constitutions since the CKRC draft had formally recognized the Kadhis' courts.
10. Consistent with this interpretation, it is noteworthy that the PSC made the National Land Commission completely dependent on parliament and deleted all its responsibilities except for managing public land. The CoE, however, restored all the language that the PSC deleted. The transfer of public lands as a political reward during the Moi years is described in detail in the report of the Ndung'u Commission.
11. See Report of the Commission of Inquiry into the Illegal/Irregular Allocation of Public Land (Nairobi: Government Printer, June 2004).
12. The distribution of administrative districts was a particularly puzzling campaign tactic, since the devolution provisions contained in the new constitution would limit the influence of, and even eliminate, district governments.
13. The first survey (N=345) was conducted in the greater Nairobi area, where support for the proposed constitution was relatively high; the second (N=643) took place in the Nairobi area and in three political constituencies around Eldoret Town in western Rift Valley Province, where opposition to the proposed constitution was greatest. Although the surveys were not nationally representative, they are nonetheless suggestive of the range of understandings that Kenyans have about the new constitution and their motivations for supporting or opposing it.
14. Leonardo R. Arriola, "Patronage and Political Stability in Africa," Comparative Political Studies 42 (October 2009): 1339-62.
15. The ICC's involvement followed parliament's failure to establish a domestic tribunal in which to try organizers and perpetrators of the 2007 postelection violence. Since ICC prosecutor Luis Moreno-Ocampo named the six high-profile suspects in December 2010, the Kenyan government has begun a campaign to defer the indictments on the grounds that the cases should be tried domestically, a position which the African Union has backed. The parliament has also since voted (in a nonbinding motion) to withdraw from the ICC. The ICC pretrial chamber has issued summonses to the suspects to appear in April 2011 and trials could move forward before the 2012 election, which would almost certainly eliminate Kenyatta and Ruto from contention and strengthen Odinga's chances of victory.
16. Daniel N. Posner and Daniel J. Young, "The Institutionalization of Political Power in Africa," Journal of Democracy 18 (July 2007): 126-40.
17. Posner and Young, "Institutionalization of Political Power in Africa."
18. As in Posner and Young's analysis, we exclude Africa's five parliamentary countries- Botswana, Ethiopia, Lesotho, Mauritius, and South Africa-because they do not directly elect their presidents. Angola's new constitution, enacted in 2010, ends the direct election of the president, so we exclude Angola for analogous reasons. We also exclude Comoros (because of its rotating presidency), Somalia (because it has lacked a clear executive during the period under study), Swaziland (because it is a kingdom), Eritrea (because it has never held national elections), and Sudan (because of ambiguity about which constitution should apply). We code Zimbabwe as not having a constitution that provides a twoterm limit because the clause that provided for such a limit was changed before 1990, the starting point of our analysis, and no term limits have been formally implemented since.
19. In Benin (where Yayi Boni will not run for his second term until 2011), Malawi (where Bingu wa Mutharika will not reach the end of his second term until 2014), Nigeria (where Goodluck Jonathan only came to power in 2010), Tanzania (where Jakaya Kikwete was reelected to his second term in 2010), and Zambia (where Levi Mwanawasa's death in 2008 reset the clock), it is too soon to tell what will happen when the two-term limit is reached.