Kenya and Zimbabwe's last elections, held within a few months of one another, were characterized by violence either before or after polling. The outcomes of both were strongly contested by the opposition, and in both cases international intervention produced transitional multi-party governments. On Friday, Kenyans celebrate the promulgation of a new constitution at high-profile ceremonies in Nairobi, while Zimbabwe is still trapped in stage one of its constitution-making process. Sabelo J. Ndlovu-Gatsheni and Russel Brueton examine why.
Following post-election violence which claimed the lives of more than 1,000 Kenyans in December 2007, voters flocked to the polls on August 4 to decide on a new constitution. Despite concerns that the country's fragile political arrangement would not withstand the tensions associated with such a referendum, the results have clearly demonstrated that Kenyans have made a positive and peaceful move towards a new constitutional dispensation.
Indeed, not only did 66.9 percent of voters approve the constitution, transcending the ethnic divisions which played such a prominent role in the violence of 2007: a significant proportion -- 72.1 percent -- turned out to vote.
While the world praises the success of the Kenyan referendum, nearly two years after Zimbabwe's political leaders signed a Global Political Agreement in an attempt to end that country's post-election political crisis, that country is still trapped in stage one of the constitution-making process, otherwise known as the outreach programme (which comprises public consultation on what the constitution should look like). With a 2011 deadline for a referendum fast approaching, one could well ask if there are any lessons to be learnt for Harare from the Kenyan experience.
In both countries, the populace has sought to lay to rest the old order of impunity, violence, corruption, authoritarianism and lack of accountability. In both cases, the people want to see an end to constitutions that were bequeathed to former British colonies by departing colonial masters, and have since been amended by elites bent on proclaiming the "sovereignty of the president" rather than the sovereignty of the people.
Furthermore, both countries have previously rejected their elite-driven constitutions. In February 2000, a "No" vote prevailed in Zimbabwe as people objected to the continuation of extensive executive powers for the presidency and the centralization of power. Similarly, in the 2005 referendum in Kenya, voters rejected attempts by President Mwai Kibaki to introduce a new constitution that was not people-driven.
Both countries embarked on their latest constitutional reviews amidst a process of experimenting with power-sharing as a form of government, following questionable elections which saw serious challenges from opposition parties. Both countries suffered from election-related violence as ruling elites clamped down on rivals to maintain power.
Moreover, the issues which both constitutions are seeking to address are similar in both Kenya and Zimbabwe: key points of the debate have related to the executive powers of the president, the devolution of power, accountability, the re-structuring of the political system, the rule of law and the ownership of strategic resources, notably land.
While contextual differences may exist, the similarities between Kenya and Zimbabwe are too many to be ignored. Why then has Kenya been able to progress through the constitution-making process, while Zimbabwe lags behind?
A possible answer lies in the high level of fragility which still exists in the power-sharing government in Zimbabwe, if not in the fact that the major disputants are still engrossed in competition over control of the state. In Harare, both the Movement for Democratic Change (MDC) and the long ruling Zanu-PF party are trying to maintain the status quo, as they both fear losing their current standing.
For ZANU-PF, a new constitution which fundamentally changes the politics of the country could severely undermine its ability to maintain power in the future. For the MDC, pushing too hard for reforms could set off another state-led crackdown on the opposition, and therefore limit its ascendency to some degree of power in the country. It seems neither party is overly eager to put their fragile agreement through the tensions, debate and compromise associated with constitutional reform.
In Kenya, on the other hand, the transitional political arrangement that was put together, with significant international assistance and facilitation, after the 2007 election was more stable. The buy-in by both President Kibaki and Prime Minister Raila Odinga is clearly illustrated by the fact that both supported the "Yes" campaign in the 2010 referendum.
Both leaders understood that their own political careers were better served by constitutional reform than through maintaining the status quo. Their partnership took the form of the Kenyatta-Odinga/Kikuyu-Luo alliance of the decolonisation period. It seems President Kibaki sees the new constitution as providing him with an opportunity to build his legacy as the far-sighted and visionary "Father" of the Second Republic, while Prime Minister Odinga views the new constitution as providing a chance finally to ascend to the presidency in 2012.
One should also not forget that while Zimbabwe is still grappling with its first "political change" since independence, Kenya has made significantly more progress: both Odinga and Kibaki worked together to remove Jomo Kenyatta's Kenya African National Union from power. While one should not over-stress the level of democratic maturity in Kenya, it no doubt has contributed to this recent success.
It is significant that in Zimbabwe, it was the "securocrats" -- President Robert Mugabe's security chiefs -- who plunged the country into crisis after the March 2008 elections by unleashing violence on those who voted for the opposition, while in Kenya it was the people who reacted violently to the suppression of their will. Neither Odinga nor Kibaki can expect to survive another round of popular anger. As a result, they seem to have chosen the path of delicately balancing the wishes of the people and those of the elites, whereas in Zimbabwe the securocrats from the old order who have remained in charge of the state still believe it might be possible to extinguish the embers of democratisation and return to the pre-Global Political Agreement status quo of violence and impunity.
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It thus seems that while the real challenge for Kenya will be in implementing the constitution and breathing life into the constitutional document, the challenge for Zimbabwe remains in removing the zero-sum power game that continues to plague the power-sharing arrangement. Both the MDC and ZANU-PF need to view constitutional reform as essential for their own political progression. This, however, will most likely remain a distant dream until the stage is reached where the constitution is no longer viewed as important only insofar as it assists in obtaining or maintaining the power of the ruling elite.
Sabelo J. Ndlovu-Gatsheni is a senior research fellow and Russel Brueton a research intern at the South African Institute of International Affairs.
