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A ray of hope for minorities in Kenya referendum vote

19 August 2010

Mohamed Matovu, MRG’s Africa Regional Information Officer, examines the Kenyan vote for change and looks at how it will change the lives of the country’s marginalised communities.

By massively endorsing the proposed constitution with a 67% Yes vote in the recently concluded referendum, Kenyans emphatically put an end, at least on paper, to historical and ethnic injustices that have long divided their country.

“The result of the referendum”, says Kenyan constitutional law Professor Yash Ghai, “puts beyond doubt the wishes of Kenyans to bring about fundamental social and political changes – a new birth, no less.”

Despite the win, the proposed constitution raised some sticky issues reflected in the 33% of Kenyans that voted against it. Many of the ‘No’ camp came from Rift Valley Province, the location of most of the country’s land disputes and ethnic tensions. One source of controversy was the retention of Kadhi’s (Islamic family) courts, despite the fact that there have been provisions for them in the constitution since independence.

The referendum marks the beginning of a wider reform agenda agreed to by the Grand Coalition Partners – comprising major political parties that participated in the flawed 2007 presidential elections – meant to strengthen Kenya’s democracy, the rule of law and avert a repeat of the post-election violence that left scores dead, thousands displaced and property worth millions destroyed.

The far-reaching reform agenda, mediated by former UN Secretary General Kofi Annan, focuses on four main areas:  stopping violence and restoring fundamental rights and freedoms; addressing the humanitarian crisis and promoting national healing and reconciliation; resolving the political crisis through power-sharing; and resolving long-standing issues as a means of bringing about national reconciliation.

What is in it for marginalised communities?

Several political commentators have endorsed the new Kenya constitution’s bill of rights as “the most progressive in Africa”, stating that it is even a notch better than South Africa’s. Others have called it “easily the most ambitious in Africa”, especially in relation to how it dramatically reduces the power of the president, expands parliamentary oversight over the executive, and provides for dual citizenship.

Endorois, Rift Valley, Kenya
Members of the Endorois indigenous community, Mochongoi, Rift Valley

However, the most important gain in the new constitution for minorities and indigenous peoples, who have endured all manner of exclusion, including widespread landlessness, is the recognition of their existence.

According to Nyang’ori Ohenjo, the chairman of the Minority Rights Consortium, a loose coalition of minority and indigenous groups in Kenya, the new constitution “is a huge building step which opens a lot of opportunities to have the rights of marginalised communities secured.”

For instance article 56 ensures affirmative action for minorities and marginalised groups, allowing for their participation and representation in governance and “special opportunities in educational and economic fields.” Article 63 recognises community land ownership, while article 100 directs parliament “to enact legislation to promote the representation in parliament of, among other groups, ethnic and other minorities and marginalised communities.”

“Such provisions,” argues human rights lawyer Korir Sing’oei, “are very progressive and explicit in recognising and addressing the specific concerns for minorities as far as recovering expropriated tribal or community land by big names, big money, and state functionaries is concerned.”

For Africa moreover, the new constitution is some form of continent-wide redemption because it represents an all-important victory:  a group of (civilian) reformists managing this kind of reform through a civil political process.

This article reflects the sole opinion of its author and does not engage MRG’s responsibility.