How Orange vs Banana referendum, deep divisions led to implosion of Narc dream

In 2002, the Rainbow Coalition was handed a blank cheque to birth a new republic in the manner of the vision they had expounded for years.

After a decade of struggle for political reforms, and years of misrule by KANU, Kenyans had high expectations for the star-studded team.

But alas!

No sooner had they settled in office than initial grumblings swelled into a political fallout.

In this second last instalment of “Against the tide”, Martha Karua regrets the fall-out as it delayed a new constitution and sowed divisions in the country.

After President Mwai Kibaki’s inauguration on December 30, 2002, there were press reports that Mr (Raila) Odinga, a key player in NARC’s victory, had been denied access to State House or was intentionally being blocked from seeing President Kibaki. 

Not being privy to the details and hearing murmurs of discontent about appointments, I called Uncle Moody (Funyula MP Moody Awori), a key member of NARC’s top organ, The Summit, who, to my dismay, confirmed this to be the case. 

I took it upon myself and called President Kibaki. I respectfully expressed my view that having accomplished so much together, it would be unfortunate to create divisions in government even before we settled down to work. 

I suspected that the President may not have been aware that Mr Odinga was being denied access to him. On raising the issue, President Kibaki directed that Mr Odinga should call him, a message I duly conveyed while visiting the Odinga family the same day. 

To date, I cannot say with certainty if this call was ever made, and, if it was, whether the thorny issues were ever discussed. I, however, know that the issues were never fully resolved because they soon blew up. 

Part of the disquiet was over Cabinet appointments, which heralded the first cracks of the NARC administration. 

Management of a political coalition is never easy. Merging visions and dreams to meet party, individual and public expectations is a delicate balancing act. 

Assembling diverse individuals and creating a harmonious orchestra out of conflicting or competing experiences, interests, and expectations is a daunting task, even in the best of times. 

For President Kibaki, the formation of a new government required a lot of analysis and reflection, and, needless to say, the hope that the visions of the appointees were in tandem with and would remain faithful to the direction his government wanted to take. 

My impression of the first Cabinet was that it was a cordial and relaxed space, where the President calmly listened as his ministers presented their agendas for the day, mainly by way of Cabinet papers or briefs, and where colleagues joined in the discussions in the best way they knew how. 

President Kibaki would often appear to doze off during a lengthy presentation only to spring up at an appropriate time to shoot a question at the presenter, revealing that he was not only listening but also had read the documents through and was alive to the issues at hand. 

Ministers came prepared, failure to which the approval of their papers would be delayed, pending clarifications and or improvements. Our meetings were in the morning and always followed by lunch. 

Although we had hit the ground running, starting with the compulsory Free Primary Education programme, which was rolled out within days of assuming power, we were soon to run into a political storm that would rock the government for the next five years. 

The previous administration had been characterised by rising cases of corruption. There was a high expectation that when NARC took over, we would have zero tolerance for corruption. 

The public expected a clean start and a decisive break from the past. The Judiciary, once the bastion for access to justice, had sadly become the face of impunity under Kanu. Justice for sale had been normalised. To boost public confidence, the Kibaki administration embarked on what would come to be known as the radical surgery of the Judiciary. 

This reform of the justice system was spearheaded by my Cabinet colleague, the then Minister for Justice and Constitutional Affairs Kiraitu Murungi. He appointed Justice Aaron Ringera to conduct an audit of the Judiciary and give proposals on how it was to be reformed. 

Justice Ringera’s report led to a purge that saw many judicial officers of all cadres, including the then Chief Justice Bernard Chunga, exit the judiciary. 

During this period, President Kibaki was still recovering from stroke. The Cabinet did not meet for a long time, and a majority of Cabinet members, including myself, never saw the President during this period. We relied on rumours of how he was faring, there being no briefings about his health or access to him except for a few members of his inner circle. 

Among these were Mr Murungi, Chris Murungaru (Minister of State for Provincial Administration and National Security) and State House Comptroller Matere Keriri. 

There was uncertainty and panic and perhaps fears that the President was incapacitated, a development that would have soon necessitated an election. Some speculate that these fears fueled the appetite to amass money by some State officials through whatever means, as preparation for such an eventuality. 

As the President made great strides in his recovery, the Anglo Leasing corruption scandal, a carry-over from the Moi days, hit the government, consuming many top leaders in the Kibaki administration. 

My reading of what was going on in government was that on full recovery, President Kibaki was probably indebted to the members of his inner circle, who steered the country when he was incapacitated. 

This could possibly be the reason why he was reluctant to crack the whip on some corruption cases, including the Anglo Leasing scandal, which sowed the very first seeds of corruption in the NARC administration and turned many against the government. 

President Kibaki had appointed John Githongo, a prominent civil society leader, the Permanent Secretary for Ethics and Governance, signaling the government’s commitment to fighting corruption. Mr Githongo had solid governance credentials as head of Transparency International Kenya. 

However, two years later, he resigned and fled the country following threats to his life by undisclosed powerful forces who were the subject of his investigations into corruption cases. 

Despite the gathering headwinds, I immersed myself in my task as Minister for Water, the one area that I was sure I could help our government deliver. Water service delivery had deteriorated countrywide by the time we came into office. 

Nairobi, for instance, could neither guarantee regular supply to its over four million residents nor the quality of the water supplied. Water rationing was a common problem throughout the capital and adjoining areas, leaving homes and industries at the mercy of cartels, who supplied water using bowsers. 

Reforming the sector and restoring sanity was a priority for me. However, one of the NARC government’s campaign pledges was to complete the constitutional review process within 100 days of taking up office. 

The Kibaki administration followed up on this promise and revived the process, but internal disagreements emerged soon after the naming of the Cabinet, thus undermining the constitutional review process. 

The Odinga-led group supported a parliamentary system with a Prime Minister elected by MPs to be head of State, while President Kibaki’s side rooted for a presidential system. None of these factions was willing to back down. 

The other fundamental disagreement between these opposing groups was whether Kenya should have a unitary or federal system of government, seemingly easy questions, which could have been settled through discussion and compromise. 

There was mutual suspicion between the two opposing camps, which split the constitutional review process and eventually the entire country down the middle. 

The Odinga-led faction was aggrieved that their views had been ignored, while the Kibaki faction felt justified to have literally bulldozed its views in the draft constitution. The referendum was a poisoned chalice, pitting the government against itself. 

The draft had been christened “the Wako draft” on account of the changes that Attorney General (Amos) Wako had inserted on behalf of the Kibaki faction without consultation or the input of other stakeholders. 

As we marched towards the November 21, 2005 referendum, the Odinga-led group teamed up with the Opposition party, Kanu, then under the leadership of Mr Kenyatta, and together, they formed the “No” team, whose symbol was an orange. 

The “Yes” team’s symbol was a banana. Odinga led the “No” campaign, while on the Kibaki side, all the ministers aligned to the President jointly took on the “Yes” campaign. For some reason, the then-minister for Justice Kiraitu Murungi did not step up as lead campaigner for the Wako Draft. 

On my part, I vigorously campaigned for the Wako draft, even though my docket was water. In the end, the draft was shot down by 56 per cent of the electorate. 

In hindsight, we failed, as a leadership, to put our egos aside and reason with each other to resolve our differences on the constitutional review process for the benefit of the country, resulting not just in the rejection of the Wako draft, but also in deep divisions in the country. 

Humiliated by the defeat and with a sense of betrayal from members of his Cabinet, who had opposed the draft, President Kibaki sacked his entire Cabinet two days later, a first in Kenyan history. 

I was out playing golf when news filtered in that we had all been fired. Earlier that day, John Michuki, the Minister for Internal Security, had asked me to accompany him to see the President, but I had declined and instead headed for the golf course to shake off my fatigue from the intense referendum campaigns. 

It turned out that the far-reaching and unprecedented decision to fire the entire Cabinet had been made during that meeting. With the benefit of hindsight, I made the right decision to stay away. 

I had been dropped at the golf club by my official car, and my driver and security on learning of our sacking, had dutifully waited to deliver the breaking news. I requested them to give me a lift to my house as I was no longer entitled to a government car or their services. 

Later that evening, President Kibaki made a televised live address from State House, Nairobi, during which he announced that it had become necessary to re-organise his government “to make it more cohesive and better able to serve the people”. 

He also announced that the old Constitution would remain in place, clarifying a grey area for those who initially thought that a rejection of the proposed Wako Draft would precipitate a constitutional crisis or necessitate a snap election. 

After about two weeks, the President named a new Cabinet. I made it back, this time as minister for Justice and Constitutional Affairs, taking over from Murungi. Odinga and all his LDP allies, who were part of the “No” team, were dropped altogether. 

President Kibaki made a surprise move by appointing members of parties in the Opposition, including his long-time friend Njenga Karume of KANU, who had deserted him to support Uhuru in the 2002 presidential race and Simeon Nyachae of FORD People, who had also vied for the presidency in 2002, finishing third in the race. 

FORD People party had 14 Members of Parliament, which was a boost to the President’s team in Parliament following the alienation of Odinga’s team. 

Although I had landed the Justice docket at last, a position that I had hoped for early in the administration, I was not in a celebratory mood given the defeat in the referendum and the emerging Anglo Leasing-corruption scandal. 

I had settled in well in the water docket, and the reforms had gained much traction. I did not, therefore, see the logic of being redeployed to inherit a problematic ministry. However, I embraced the new docket with the realisation and acceptance that there was work that needed to be done and, as a leader called to serve, I had a duty to rise to the occasion. 

The referendum campaigns had divided the citizens and caused political tension. To diffuse the tension in the country and search for a way forward after the dramatic fall-out, after internal consultation within my ministry, I suggested to the President that he should appoint a committee of eminent persons with a brief to speak to the people around the country, understand their grievances, and make recommendations on the way forward. 

Having been the first ever referendum in Kenya, the vote had created a misconception by the general population that a defeat would automatically cause the entire government to step down and a new leadership to take over. 

The firing of the Odinga faction from Cabinet compounded this confusion. We needed something to move the country from this paralysis. The President accepted my recommendation and appointed a nine-member committee of eminent persons, with Bethwel Kiplagat as its chair. 

The team worked for three months and in its final report, gave recommendations on reconciliation and national healing, with a set of actions to be implemented before the December 2007 elections. 

It further recommended the completion of the constitutional review process and gave a raft of legislative and policy reform proposals that the public wanted the government to implement. 

The Odinga-led group, now the official Opposition, declined to make any presentations to the committee, and as such, the recommendations were made without their input, thus undermining the committee’s work. 

In January 2006, arising from the Kiplagat team’s report, I formed the Multi-Sectoral Working Group as a step towards the completion of the constitutional review process before the 2007 elections. 

This initiative failed to get bipartisan support and was also undermined from within the government, with some players in the office of the President going into overdrive to scuttle it. 

The political terrain remained divisive after the referendum, thus frustrating efforts for bipartisan support on issues of national importance and the constitutional review was no exception. 

Tensions continued to rise with some politicians fanning ethnic divisions in subsequent months and in the lead-up to the 2007 election. 

On December 27, 2007, Kenyans went to the polls for presidential and parliamentary elections. With the NARC dream in tatters, President Kibaki chose the Party of National Unity (PNU) as his vehicle for re-election. 

PNU was an umbrella party bringing together many other parties to champion President Kibaki’s re-election. His main challenger for the presidency was his former minister for Roads, Raila Odinga, who only five years earlier had declared “Kibaki Tosha.” 

Although President Kibaki had the advantage of incumbency, we in his corner knew that it would not be as easy as it had been in 2002. 

The ethnic divisions that had been planted during and after the referendum had worsened, and the support for the two formations took this fault line, leading to the derogative campaign of what came to be known as “41 [ethnic groups] against one”, meaning all Kenyan tribes pitted against President Kibaki’s ethnic group, the Kikuyu. 

On the evening of December 30, the then-chairman of the Electoral Commission of Kenya, Samuel Kivuitu, declared that President Kibaki had won by garnering 4.5 million votes against Odinga’s 4.3 million, a thin margin. Kalonzo Musyoka was third with 879,000 votes. 

Violence erupted in the country upon the announcement of the results, mainly in Odinga’s strongholds. Kenya was literally burning, from Mombasa to Nairobi and parts of Rift Valley, Western Kenya and Nyanza. 

As the protests raged for days on end, President Kibaki appointed half of his Cabinet, leaving half the slots vacant, a move, which, with the benefit of hindsight, was intentional. 

I remember asking him why he had not named the full Cabinet and all he said was: “Wewe ngoja” (you just wait), leaving me puzzled. 

He appointed Kalonzo Musyoka, who had finished third in the presidential race on an ODM-Kenya ticket, as Vice President. His party entered into a post-election coalition with President Kibaki’s PNU. I was re-appointed to the Justice portfolio. 

It is estimated that over 1,000 people were killed, over 300,000 others injured and over 650,000 displaced from their homes in the post-election violence. 

This was, and still is, the bloodiest post election dispute in the country’s history.

The book was published with support of the Friedrich Naumann Foundation Regional Office, South Africa. It’s available in leading bookshops.