Referendums are a very bad way to settle highly contentious issues

In August 2010, 67 per cent of registered voters in Kenya voted for a new Constitution. Some 33 per cent voted against it. Seven years later, with such overwhelming support for a new constitutional order, the country should be living a happily ever after tale. However, the Kenya of today is far worse off than it was on August 2010.

In our excitement, the country may have forgotten to change the hearts of the 33 per cent who rejected the 2010 Constitution. As fate would have it, they now have a firm and unyielding grasp on instruments of power and appear determined to destroy every gain of the 2010 Constitution. The result is this: The pillars of the 2010 Constitution have over the last 7 years been destroyed one at a time. 

The 6th Chapter on Leadership and Integrity is now not worthy of the pages it is written on. The knees of the Chapter 7 Independent Electoral and Boundaries Commission, the fountains of our democracy, gave way in 2013. Parliament. Enough said. Chapter 10, the Judiciary, may soon have its D-Day dawning.

The Chapter 9 Cabinet Secretaries are today no different than the Ministers of old. They are so entangled in the politics of their local communities they might as well now be allowed to hold elected positions as their predecessors did.

Deep social mistrust

Our Chapter 14 disciplined forces appear to have changed only by name. As a result they violate the 4th Chapter on Fundamental Rights and Freedoms on every opportunity handed to them. Kisumu, Kibera, Mathare and others on the night August 10th. The brutality visited on university students on September 28th. On September 27th, a senior advocate and Member of Parliament, Otiende Amolo, was physically assaulted for securing the freedom of his client.

Is Kenya suffering from “The Curse of the Referendum”? While superficially attractive, referendums are a very bad way to settle highly contentious issues. Even under calm conditions they can be dangerous. In situations of deep social mistrust, they can be deadly.  

Every country that holds a referendum in peace time over a hotly contested issue faces civil difficulties if not outright civil conflict after the result of the referendum.

Brexit sent Great Britain reeling. A referendum led to the perennial conflict between India and Pakistan over Kashmir. The East Timor independence referendum was followed by civil war.  The recent Turkish Referendum was quickly successively followed by an attempted coup and dictatorship.

In 2005, in an article in the People on Sunday, I pointed out the dangers of settling on the provisions of the Constitution on the basis of a popular vote, without attempting to change the hearts and minds of the few who were opposed to it. Some 12 years later, the Kenya of 2017 appears to be following the same script as the other countries before it.

All is not lost; yet. In 2005, and in 2010, President Kenyatta and Honourable Raila Amolo Odinga, stood hand in hand. In 2005, going against the government position, they saved Kenya from becoming a banana republic. In 2010, they stood and succeeded side by side for the new Constitution. On both occasions, they stood on the right side of history. On both occasions, they stood for and with Kenya.

It is ironical that their impending third face-off on October 26th now threatens every pillar upon which Kenya stands. Kenyans no longer see eye to eye. They value their tribes more than their nation. The Executive treats its own citizens with iron gloves.  Parliament has ceded its independence. Only 19 million plus registered voters shield the Judiciary from the Executive. No-one knows the fate of IEBC. 

Will President Uhuru Kenyatta and Raila Odinga in 2017, for one more time, stand again on the same side with Kenya and break the global referendum curse?

- The writer is an Advocate of the High Court of Kenya. finclegal@hotmail.com