“Yes Win” that Gave Kenya a New Constitution

*Dominic Vincent Nkoyoyo

On 4th August, 2010 millions of Kenyans trooped to the polling stations to cast their vote for or against the Proposed Constitution. The next day 5th August the country woke up to a new Constitution! The old 1963 Lancaster Constitution to which Wananchi did not contribute was on the shelf of history! An overwhelming majority of Kenyans about 70% voted “Yes”

This obviously means that the majority of Christians voted “Yes.” So, where does this leave the Church leaders who, together with William Ruto led the “NO” Camp, although for totally different motives?

Were all our Church and moral leaders: Catholics, Anglicans, Presbyterians, Pentecostals, and the rest of the Christian denominations in the country wrong in opposing Article 26 of the now new Constitution of Kenya due to its problematic clauses on abortion? Of course not. They were, if I may be allowed to say, 1000% right. Could we then say that the Christians who voted «Yes» were supporting abortion?

Absolutely not! For in African cultures a child is so important that the more children one has the better!

Another reason Church leaders advanced in their campaign against the Proposed Constitution was the inclusion of the Islamic Kadhi’s courts! But why were Christians not persuaded by this to vote out the Proposed Constitution? These courts had been in the old Constitution since independence and had never troubled anybody! They basically deal with Islamic family affairs. How then could Christians vote out a good Proposed Constitution because of this! And couldn’t we tolerate this and move forward as a country? Where is our religious tolerance?

One of the lessons we have to learn is that a Constitution of a country given then many different parties and forces involved can never be a matter of take it all! It is always an affair of give and take! Compromises are inevitable.

Many Christians voted “Yes”not because they had no respect for their religious leaders and not because they supported abortion; but because they could not afford losing such a golden chance to get a new Constitution which had evaded them for more than two decades because of an abortion close which could be amended later! In fact that Article 26(4) can still be amended, for the Constitution itself allows amendments! And the Proposed Constitution was clearly far better than the Lancaster Constitution. Had the Proposed Constitution been worse than or the same as the Lancaster one, wananchi could have voted it out.

But was it politically possible to amend the Proposed Constitution before the referendum vote? From the point of view of an ordinary man on the street maybe it was, but politically speaking, given the history of that document, it was absolutely impossible!

The Committee of Experts, on November 17, 2009, released the Proposed Constitution to the public and gave 30 days to evaluate the document. Whoever had proposals or amendments, was within those days, expected to forward them to their Member of Parliament. This was done and after several revisions, on February23, 2010 the Committee of Experts published the Proposed Constitution and presented it to Parliament. The amendments presented were many and some could not be incorporated in the Document as MPs failed to reach agreement on them! A total of 150 amendments were left out!

But fortunately on 1st April, 2010 parliament UNANIMOUSLY approved the Proposed Constitution! This was already a great achievement in the history of Kenya. In fact, at this very moment even before the referendum, the people of Kenya said “YES” to the Proposed Constitution. For the MPs who unanimously said “YES” to the Document represent all the Kenyan citizens! So already here it was clear that “YES” was to win.

This was a big political win and gain for both Kibaki and Raila. So, when Church Leaders suggested that the Proposed Constitution be amended before the referendum, only apolitically minded people could think that the two principals could contemplate such a move. Obviously, some MPs would have revived the issue of the 150 amendments which were not incorporated!

That Church Leaders as I have explained above, were absolutely right in opposing article 26, and that the Christians who voted yes did so not because they supported abortion, the question which comes to our minds then is: What exactly went wrong that the majority of the Christians did not follow the advice of their Leaders to vote “NO?”

After all that I have said, the answer is very simple. Church Leaders got “the socio-political analysis” of the situation wrong! And this led them to a wrong strategy of “direct confrontation” with the government which could not produce their desired goal of amending Article 26(4) and other contentious issues before the referendum!

Anglican Archbishop Dr. David Gitari had in my opinion a better socio-political analysis of the situation. He perceived that voting Yes or No both choices were problematic, but it was a lesser evil to vote Yes! And so he proposed the Christian moral principle of: When confronted with two evils, choose the lesser one, as the right way to go in that situation. I too believed that it was the right thing to do and I explained why in my article Time has run out, (cf.CISA, Issue No.046 Tuesday, May 18, 2010).

So I propose that Church Leaders in Kenya get better and well informed socio-political analyst to advise them in socio-political matters in the future. Otherwise, they will lose credibility and confidence of the people which is very dangerous for the Church. Their total silence during the 2007/8 ethnic violence also influenced the people in not taking seriously their advice to vote NO. That silence in such a critical situation wounded the Church very deeply and the wound has not yet healed!

This is the right time to wage a fierce battle to have Article 26(4) amended. And if they can tolerate the existence of the Kadhi’s courts in the New Constitution, then they will also have the support of the Muslims to have it changed, because they too do not support abortion. But should they continue to insist on the removal of the Kadhi’s courts from the Constitution, then, they will lose the support of the Islamic community!

*Dominic Vincent Nkoyoyo is a Monk at the Monastery Val Notre-Dame, Canada.
Disclaimer: Views expressed in this section do not represent the opinions of CISA.