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Wanjiku's Journey WANJIKU’S JOURNEY Tracing Kenya’s Quest for a New Constitution and Reporting on the 2010 National Referendum November 2010 2 Wanjiku’s Journey Table of Contents List of Abbrevia ons and Acronyms 5 Acknowledgment 7 Foreword by the Chair 8 Execu ve Summary 9 PART I: BACKGROUND TO CONSTITUTIONAL REFORM 11 1.1 Brief History of Struggle 11 1.2 Failure of the State 12 1.3 Imminent Collapse in 2008 14 PART II: ROAD TO THE 2010 REFERENDUM 16 2.1 Stages of Review and the Organs 16 2.2 KHRC’s Role in the Final Phase of Cons tu onal Review 17 2.3 KHRC’s REMAC 18 2.3.1 Goal of Monitoring 18 2.3.2 Objec ves of Monitoring 19 2.3.3 Thema c Scope and Focus 19 2.3.4 Targeted Human Rights Viola ons 20 PART III: MAJOR FINDINGS 21 3.1 Civic Educa on by the CoE 21 3.2 The Referendum Campaigns 22 3.2.1 Abuse of Offi ce and Bribery 23 3.2.2 Distor on of the Contents of the PCK 24 3.2.3 Use of Hate Speech and Unsavoury Language 27 3.3 In mida on, Threats and Violence 28 Wanjiku’s Journey 3 3.4 Poli cal Subversion 30 3.5 Conduct of the Referendum 30 PART IV: JOURNEY TOWARDS IMPLEMENTATION 34 4.1 Eff ec ve Date 34 4.2 Organs for Implementa on 34 4.2.1 The CIOC 34 4.2.2 The CIC 35 4.2.3 Role of Parliament 36 4.2.4 The People of Kenya 36 PART V: CONCLUSIONS AND RECOMMENDATIONS 37 4.1 On the Cons tu on of Kenya 37 4.2 On Leadership 37 4.3 On the People of Kenya 38 4.4 On Implementa on 38 4.5 On the 2012 General Elec ons 39 4.6 On Civic Educa on 40 ANNEXES AND REFERENCES 41 Annex 1: Cons tuencies that were monitored 41 Annex 2: The IIEC’s Offi cial Referendum Results 42 Annex 3: Envisaged Government Structure 48 BIBLIOGRAPHY 49 4 Wanjiku’s Journey List of Abbreviations and Acronyms 4Cs Ci zens’ Coali on for Cons tu onal Change AG A orney General CEC County Execu ve Commi ee CGD Centre for Governance and Development CIC Commission for the Implementa on of the Cons tu on CIOC Cons tu on Implementa on Oversight Commi ee CKRC Cons tu on of Kenya Review Commission CNC Coali on for Na onal Conven on CoE Commi ee of Experts COVAW Coali on on Violence against Women CRECO Cons tu on and Reform Educa on Consor um CSOs Civil Society Organisa ons DPK Democra c Party of Kenya ECK Electoral Commission of Kenya ELOG Elec on Observa on Group FIDA Federa on of Women Lawyers-Kenya FORD Forum for the Restora on of Democracy IDPs Internally Displaced Persons IEBC Independent Electoral and Boundaries Commission IIBRC Interim Independent Boundaries Review Commission IIEC Interim Independent Electoral Commission IPPG Inter Par es Parliamentary Group KADU Kenya African Democra c Union KANU Kenya African Na onal Union KEC Kenya Episcopal Conference KHRC Kenya Human Rights Commission KNDR Kenya Na onal Dialogue and Reconcilia on KNCHR Kenya Na onal Commission on Human Rights KNHREC Kenya Na onal Human Rights and Equality Commission KPU Kenya Peoples’ Union LDP Liberal Democra c Party NA Na onal Assembly NAK Na onal Alliance of Kenya NARC Na onal Rainbow Coali on Wanjiku’s Journey 5 NARC-K Na onal Rainbow Coali on-Kenya NCA Na onal Conven on Assembly NCC Na onal Cons tu onal Conference NCCK Na onal Council of Churches of Kenya NCEC Na onal Conven on Execu ve Council NCEP Na onal Civic Educa on Programme NCIC Na onal Cohesion and Integra on Commission NDP Na onal Democra c Party NGOs Non-Governmental Organisa ons NLP Na onal Land Policy ODM Orange Democra c Movement ODM-K Orange Democra c Movement-Kenya PCK Proposed Cons tu on of Kenya PeCK People’s Commission of Kenya PEV Post-Elec ons Violence PNU Party of Na onal Unity PSC Parliamentary Select Commi ee REMAC Referendum Monitoring and Advocacy Centre RPP Release Poli cal Prisoners SDP Social Democra c Party TJRC Truth, Jus ce and Reconcilia on Commission 6 Wanjiku’s Journey Acknowledgment The KHRC wishes to acknowledge several Kenyans who made this publica on possible. First and fore- most, we wish to appreciate the reless eff orts of 59 monitors for sending various reports before, during and a er the referendum campaigns. Their energies in data collec on and sending mely reports were exemplary. While we cannot men on all monitors, we would like to single out four whom we rated as having the best reports throughout the monitoring exercise: Richard O eno Olang, Faith Karuri, Karu Nchebere and Susan Waturi Ndanyi. Further, we also wish to acknowledge the work of Viola Jobita and Pauline Wanja who were collec ng, colla ng and analysing data emerging from the above monitors and also other sources. The KHRC is for- ever indebted to the dexterity of their analyses. Further s ll, we wish to thank Davies Malombe for hav- ing coordinated and supervised the work of the Referendum Monitoring and Advocacy Centre (REMAC). Finally, this report was co-authored by James Mawira and Tom Kagwe, whom we hear ly acknowledge as well. We acknowledge Beryl Aidi for input in copy edi ng. Last but not least, we wish to appreciate the me culous editorial work done to this report by Muthoni Wanyeki, the Execu ve Director at KHRC. While we appreciate the 70 percent eligible Kenyan electorate who turned up on August 04, 2010 to exercise their democra c right to vote, it is our hope that this report will serve as a wake-up call to all Kenyans, those living and those yet to come in the next genera on, that the price of liberty is eternal vigilance. Wanjiku’s Journey in searching for a new Cons tu on is over; at least the fi rst part. The Prom- ulga on of the new Cons tu on, on August 27, 2010, marks the beginning of a new Journey: that of implemen ng, safeguarding and upholding the values and principles that the new Cons tu on of Kenya (2010) sets forth. God bless Kenya Wanjiku’s Journey 7 Foreword by the Chair Since its founding, the Kenya Human Rights Commission (KHRC) has established itself as the premier human rights non-governmental organisa on (NGO) in Kenya, and perhaps in the region. The KHRC has been at the forefront of bringing new and novel methods of advocacy to the fi eld. As a norma ve ma er, the KHRC has pushed the fron er of norm-making in both tradi onal and non-tradi onal areas of advocacy. Vision 2012, the cornerstone of the KHRC’s current mandate is a clear tes mony to these contribu ons. That’s why this report, on the 2010 referendum on the Cons tu on, is a fi ng instalment in the work of the organisa on. First, some context. While it could be argued that the struggle for a democra c Cons tu on dates back to the an -colonial struggle and the eff orts to challenge the entrenchment of an imperial Presidency un- der the fi rst post-independent regime, the KHRC was among the earliest advocates for a new democra c Cons tu on for Kenya. Way back in 1994—even before the clamour for a new Cons tu on became a key fi xture in Kenya’s poli cal lexicon—the KHRC, together with the Interna onal Commission of Jurists (ICJ)-Kenya and the Law Society of Kenya (LSK), had produced a model Cons tu on for Kenya. Although the model Cons tu on was a project of these three organisa ons, the KHRC ini ated and led the pro- cess towards it. I am proud of the KHRC’s pioneering role in this respect. That document laid the groundwork for the debate that was to follow and culminate in a new Cons tu- on more than 15 years later. Its basic norma ve framework can be seen in the new Cons tu on. But, between 1994 and 2010, the KHRC ratcheted up its struggle for a new Cons tu on. The organisa on’s Board and staff members have been key players in the na onal debate every step of the way. It’s not, therefore, an exaggera on to claim the new Cons tu on as the KHRC’s baby. That’s why we, as an organisa on, took a special interest in the referendum and the way it was conducted. We assiduously monitored the ac vi es of all players throughout the long and contested process. We were concerned with the fairness and integrity of the process to make sure that the corrosive eff ects of bias, bigotry, and poli cs would not deprive Kenyans of their right to a free vote. This report is par cularly useful for the lessons it off ers because it is those lessons that will indicate how well the Cons tu on is implemented. But the report is also a human rights record of the most historic event in Kenya since independence in 1964. We off er the report to all as a fund of knowledge for what we saw—especially those aspects of the process that pointed to a democra c defi cit. We hope that it will serve as guide to democra c development.
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