Opinion: Divisive issues may sink Kenya's constitution

WASHINGTON — After a divisive and controversial presidential election in 2007 that led to post-election violence and a unity government lead by rivals Mwai Kibaki and Raila Odinga, Kenyans will go to the polls again on Aug. 4 to cast yet another controversial and potentially divisive vote.

This time, Kenyans will be voting on a new constitution, not for or against a specific politician. But without a doubt, the referendum votes cast for or against the new constitution will be based equally on politics and substance.

In the backdrop, the International Criminal Court has launched a new investigation into political leaders from both major political parties, President Kibaki’s PNU and Prime Minister Odinga’s ODM, that organized and supported post-election violence in 2007.

In 2005, 58 percent of Kenyans voted against a new constitution. Today, many of the issues that killed that proposed constitution in 2005 remain in the new document to be voted on in July. A survey of the issues gives an accurate representation of what divides Kenya on this vote. Roughly 80 percent of Kenya’s population is Christian while 10 percent to 25 percent is Muslim. This brings us to divisive issue number one in the proposed constitution.

Following Kenya’s independence in 1963, Muslims have had the constitutional authority to operate Kadhis’ courts. Under the proposed constitution, these Islamic law courts will have jurisdiction over Muslims to determine personal status, marriage, divorce and inheritance. This may seem benign without a further reading of the proposed constitution’s Bill of Rights. Under Article 24 of the proposed constitution, which includes the legal limitations of the bill of rights, the right of equality “shall be qualified to the extent strictly necessary for the application of Muslim law before the Kadhi’s courts.”

Not only is this a violation of the right to equality guaranteed to all Kenyans, with discrimination based on sex and religion banned under the proposed Bill of Rights, it is an abject assault on the rights of Muslim women in Kenya. Further, Kenya’s dominant Christian minority has no access to religious courts of their choosing where the laws of the church would apply.

Muslim Kenyans have access to a separate legal code, Islamic law and a separate court system, Kadhis’ courts. Christian Kenyans opposed this court system in 2005 and will be opposing it again in campaigns against the proposed constitution.

The second potentially divisive issue in the proposed constitution, an issue that divides many countries around the world, is abortion. Recent polls have shown that 69 percent of Kenyans oppose abortion. In light of that fact, Kenya’s Committee of Experts on Constitutional Review attempted to write a compromise into the proposed constitution.

While the proposed constitution states that “the life of a person begins at conception,” traditionally pro-life wording, the same section permits abortion if a trained health professional deems it necessary in an emergency situation, or if “the life or health of the mother is in danger.” Because law and judges define health broadly, this section essentially permits abortion on demand. Abortion could be the issue that leads this proposed constitution to its demise.

The final divisive issue is that of devolution, a plan in the proposed constitution that will transfer some power from the national government to newly established regional governments.

Kenyans are concerned that the cost of regional governments will damage Kenya’s already deteriorating economy and that operation of these new regional governments will prove unworkable. Regardless of religious belief or political inclinations, all Kenyans are worried about whether this colossal undertaking is realistic in Kenya’s current political climate.

The American Center for Law & Justice, the organization where I direct international operations, recently opened the East Africa Centre for Law & Justice in Nairobi.

“Kenya’s church leaders and other Christian lobbyists have come out condemning the provisions on Kadhis’ courts and abortion and promising that the Christian block will vote down the draft,” said attorney Joy Mdivo, executive director. They did it in 2005 and because the drafters of the proposed constitution were deaf to their concerns as this constitution was being drafted, they just might be able to do it again.

Kenya’s proposed constitution will now engage in an uphill battle against Kenya’s grassroots Christian leaders. We’ll know in August if these issues will cause a second draft constitution to be rejected by Kenya's voters.

Jordan Sekulow is an attorney and Director of International Operations at the American Center for Law & Justice. He oversees the group’s work in the Middle East, Africa and Pakistan.