Vote on constitution set to challenge Kenya's 'poisoned' tribal politics

Kenya is back at the crossroads. That is the warning emanating from the pulpits of its church leaders, fretted over by academics, and fought over by its politicians and commentators.

For the first time since the violence that devastated the country in the wake of a flawed election in 2007, leaving more than 1,000 people dead, East Africa's biggest economy faces a major democratic test.

Voters must decide this week whether to back a controversial new draft constitution that was a key element in the peace deal that ended the fighting in 2008. The 'Yes' campaign, which includes both sides of the power- sharing coalition that emerged from the wreckage of the last election, considers the draft to be voted on on Wednesday a long overdue chance to reform the dysfunctional system of the post-independence era, devolving power from the centre, and drawing some of the accumulated poison of tribal politics.

But it has faced formidable resistance, led in part by Kenya's church leaders, who are furious at the document's recognition of Islamic customary courts, and at a clause they claim opens the door to legalised abortion.

This majority-Christian country's competing denominations have agreed a truce during a campaign that has been more reminiscent of the culture wars of US politics than the confessional and ethnic mosaic of East Africa.

Flanked by a palette of ecclesiastical robes at Nairobi's Catholic Basilica on Friday, Cardinal John Njue railed at the "evil" in the proposed constitution. "Today our country is at the crossroads," he said from a podium hung with the slogan: "Choose Life, Vote No".

"We seem to have sidelined God's commandments ... We reiterate our advice to all Kenyans to reject this draft."

Much of the energy in the "No" campaign has come from the more overtly political Pentecostal churches. Bishop Mark Kariuki, the rising star of this evangelical movement, has railed against an allowance for doctors to abort if the mother's life is at risk, and has highlighted foreign backing for the other side.

"The American government is funding the Yes campaign," the bishop said. He claims that donor funds given under the guise of "civic education" are being use to lobby for Yes votes. The US embassy – one of the largest in Africa, reflecting Kenya's strategic importance to Washington – has denied taking sides.

In fact, both sides have outside help. Support for the draft among pro- reform Western embassies who helped to broker the peace in 2008 is well-known, and US pro-life groups have been pouring money into the No campaign.

However, the effort to use abortion as an American-style wedge issue on Wednesday appears unlikely to work, as it ignores aspects of the constitutional battle that go much deeper. Opinion polls over the weekend pointed to a 60-40 vote in favour of the draft. For all the culture wars rhetoric, it is tribe and not God that takes precedence, argues John Githongo, a former anti-graft official who was famously forced to flee Kenya after trying to blow the whistle on grand corruption.

He is back, and pushing hard for a Yes vote, arguing that an over- powerful presidency is at the centre of this system. "Our political system has three pillars: tribalism, corruption, and unfair distribution of resources," he says. "Tribalism delivers power to an individual, who then uses corruption to skew distribution of public resources, primarily to his kinsmen."

This approach was created and has been sustained by tribal barons who took Kenya to the brink of civil war two years ago. Githongo believes that the proposed draft can "open new political space" by reducing the power of the presidency and devolving some spending and decision-making to the regions.

First it must overcome the most incendiary issue in Kenya: land. The Great Rift Valley, which has absorbed and fed the country's mushrooming population since independence, has become central to the tribal rivalries that shape its politics.

The area witnessed the worst of the post-election violence, and has been flooded with 10,000 security personnel this time around to avoid a repeat. Earlier in the campaign, six people were killed by a grenade attack on a No campaign rally.

It is no coincidence that former president Daniel arap Moi, one of the country's richest men, has emerged from semi-retirement to lobby hard against a draft constitution that would seek to unravel some of the illegal land deals dating from his tenure.

Tribal support in the Rift from the Kalenjin grouping put Moi in office, but this time the balance of tribal politics, which Moi did so much to build, is against him. The unexpected support of President Mwai Kibaki and Prime Minister Raila Odinga means that Kenya's two largest tribal blocs, the Kikuyu and Luo, are in the Yes camp.

Political analyst Murithi Mutiga says that conflict in Kenya arises primarily when the Kikuyu and Luo are at odds. Only a series of unconnected events persuaded the political rivals to compromise, he argues, and that has forced most of the political class to fall in line. The business elite then followed, in search of stability. "The trauma of the violence last time is what is driving the process forward," Mutiga said.

Yash Pal Ghai, a respected Kenyan-born constitutional expert, says that this time the support of the majority of big politicians, or "ethnic barons", will be decisive. The draft, which calls for a US-style system with a bill of rights, separation of powers, checks and balances and a non-elected cabinet, is not perfect, he argues, but "it's the best we're going to get for a long time."

It's not only church leaders and the populists who disagree. Chris Foot, a young Kenyan lawyer, points out that the draft is poorly written, with"fatal deficiencies". There are 16 spelling mistakes and five missing sections. But it is the sections on land that most concern him. The draft could pave the way to nationalising foreign-owned land under a confused lease system, he warns, and sections on community land could open a "pandora's box" of ancestral claims.

Foot also rejects claims that the document can be improved on later; the terms for an amendment make that practically impossible, he says.

But Kenya is at a critical juncture, argues Githongo, and only a Yes vote offers hope: "We are forced to make this moment a positive one as Kenyans, because the implications of failure in this process are too terrible."

The Path to Reform

Why does Kenya need a new constitution?

Kenya has been in search of a new constitution since the declining years of the regime headed by Daniel arap Moi (right) as president.

Successive leaders have campaigned with promises of changing the current settlement, only to fail to deliver. The constitution, it is widely agreed, has created an 'imperial' presidency, with sweeping central powers. This has become the sole electoral prize in Kenya, and the patronage system that supports it has cemented the primacy of tribe in politics. Decades of resentment at this setup spilled over into violence after a contested election result two years ago.

What are the main points of the proposed settlement?

The draft would create a US-style system, with a second chamber and a President surrounded by greater checks and balances. It would allow for the recalling of non-performing MPs and for a cabinet of technocrats. It would also scrap the temporary role of Prime Minister that emerged from peace talks in 2008, and set up a land commission to address the issue of land illegally acquired under past governments.

Who is supporting it?

Unusually, the leaders of the two largest ethnic groups, the Kikuyu and the Luo, are campaigning for a 'Yes' vote. There is a strong sentiment among the country's business elite and its academic class that the document represents the best available compromise. Most of civil society is also in support, and there has been a strong, if discreet, push in favour of it from most of Kenya's main donors in Europe and the US.

Who is leading the 'No' campaign?

The main opposition comes from those who stand to lose land and influence, such as the Kalenjin political leaders of the Rift Valley, former president Moi and cabinet minister William Ruto. They have been joined by Christian church leaders who are outraged at a clause that opens the door – in limited circumstances – to legal abortion; this campaign has drawn financial support from the pro-life lobby in the US.