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The referendum result ‘puts beyond doubt the wishes of Kenyans to bring about fundamental social and political changes’, writes Yash Ghai. Although the new constitution sets both a framework and a timetable for its implementation, Ghai says it’s crucial that Kenyans are not sidetracked by talk of ‘reconciliation through further negotiations on “contentious issues”’ from elites ‘determined to sabotage reform agendas’. ‘The whole point of a referendum is to see which side has greater support, and to bring the debate to closure,’ says Ghai.

The Proposed Constitution will soon become Kenya’s new constitution, with the massive endorsement of the people. The result of the referendum puts beyond doubt the wishes of Kenyans to bring about fundamental social and political changes – a new birth, no less. They are now anxious that the promises of constitution, for which they have struggled for so long and so painfully, should be implemented speedily. Fortunately the new constitution itself sets both a framework and a firm time-table for its implementation, and with some sanctions for failure to meet the legislative programme.

What is crucial is that we do not sidetrack the implementation in all this talk of forget and forgive, we are all Kenyans, let us build bridges, let us deal with ‘contentious issues’. If we are serious about reform, we have to ignore these siren calls. It is not that we are against reconciliation; the question is on what terms. It is true that we are all Kenyans but we are also a society in which a few exploit many, we are preached to about morality by pastors of dubious morality, there are growing class differences and animosities, there is discrimination against minorities, the elite are determined to sabotage the reform agenda of the constitution.

Nowhere is this better illustrated than the dilemma that Kenyans feel they are faced with on what to do with the NO leaders. They are unlikely to have the numbers or ability to obstruct the implementation; but what moral or other responsibilities do we owe them? We should of course not victimise them for their stand. They would have full rights to take part in the debates on new legislation and measures for implementation. Many points of detail need to be determined in which they will have a role. But the argument for reconciliation through further negotiations on ‘contentious issues’ is not sustainable. It is only through implementation that we can convince the doubters what a good constitution it really is.

Kenya is not the first country where there have been opposing sides in referendum. The whole point of a referendum is to see which side has greater support, and to bring the debate to closure. Secondly, we must respect the integrity of the process. Our process has been long drawn out, with ample opportunities to negotiate differences. When we reach agreement in accordance with the process, those who lose repudiate it and set out to sabotage it. Democracy requires that the decision by an overwhelming majority of Kenyans should be respected. Nor does the decision impose any great hardship on or discrimination against the NO people.

Another fundamental problem in the reconciliation approach is the difficulty of identifying what are the differences that need to be re-negotiated. It is clear that many those who voted NO did not understand the Proposed Draft (and would in all probability have voted YES if they had). They were fed unimaginable falsehoods: That foreign children will be dumped on us, peasants with small holdings will lose their land, President Kibaki would be tried in the ICC, land on which miraa is grown will be confiscated, men will marry men, abortion on request will be available, community land will be taken away and given to the Land Commission, Kenya will be subjected to Islamic rule, it would be possible to detain people without trial, teenage girls will be provided with contraceptives, God will punish those who vote YES. Since none of this is true, there is nothing to negotiate. It merely remains to tell the NO voters the truth.

There are other moral objections to re-negotiation (apart from the injustice it would do to those who voted on the draft as a package). Most important is the highly reprehensible conduct of most leaders of the NO campaign. They knew full well that what they were telling the people were lies, playing upon the trust that people, mostly unable to understand the Proposed Constitution, placed on pastors and senior politicians. They, including leaders of Churches, violated their sacred obligations to their ‘sheep’, as they call the faithful, and misled them in a most despicable to protect their own interests, against those of their sheep.

Finally, it would be dangerous if ‘contentious’ issues were re-opened for negotiation – the Church aimed to introduce religion into politics and state. If they had succeeded, it would have destroyed chances of national integration and opened the prospects of civil war. They denigrated Muslims and their culture which in other circumstances would have led to acute tensions, but for the wisdom and extreme restraint on the part of Muslim leaders. Few multi-religious and multi-cultural states have escaped horrible fighting and oppression when religion is introduced into the structures of state.

Kenyans must remember that our propensity to forgive and forget is the cause of massive impunities and our present situation from which the constitution aims to take us away.


* Yash Ghai is a professor of constitutional law. He is the head of the Constitution Advisory Support Unit of the United Nations Development Programme in Nepal and a special representative of the UN secretary general in Cambodia on human rights.
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