updated 1 July 2010
On 4 August 2010, Kenyans will vote in a referendum to accept or reject a new constitution.
After rejecting all of the 160 changes proposed by legislators, Kenya's parliament adopted the draft constitution on 1 April 2010.
On 6 May 2010, Kenya's Attorney General published the proposed draft constitution.
While no one doubts that Kenya is in need of constitutional reform, the proposed new constitution contains several highly contentious elements:
1) Abortion. The new constitution softens, and makes more ambiguous, the language on abortion such that church leaders fear it might open the door for easier abortions.
2) Majimbo (a Swahili word meaning "administrative units"). Under the new constitution there will be a devolution of power, from the centre to 47 self-governed ETHNIC counties, a process that opponents regard as nothing short of 'Balkanisation' which will lead to renewed ethnic conflict.
3) Kadhi (Islamic) Courts. The new constitution entrenches Kadhi (Islamic) courts in the constitution, giving them national jurisdiction and authority equal to the state's secular courts. Opponents fear this could lead to Kenya's secularism, and religious liberty being diminished.
Religions no longer treated equally?
Kenya's constitution used to have a clause that stated, "All religions will be treated equally". However, as noted by the East Africa Center for Law and Justice, the new harmonised draft constitution has dropped the statement. "The draft only states that 'There will be no state religion'." Furthermore, through the entrenchment of Kadhi courts, Islam is the only religion recognised in the draft constitution.
Kenyan Muslims (8 percent) have long pushed to have Kadhi courts fully entrenched in the Constitution with national rather than just local jurisdiction.
On 24 May, a three-judge bench declared the inclusion of Kadhi courts in current Constitution illegal and discriminatory. The judges, sitting as a constitutional court, said the decision to include the Kadhi courts in the country's ultimate law favoured one religion over others.
See also: Kenya's draft constitution under fire for Islamic courts
By Mike Pflanz, Christian Science Monitor, May 28, 2010
The ruling prompted church leaders to petition for a recall of parliament so Kadhi courts could be declared unconstitutional and relevant amendments could be made to the draft constitution. However, former Law Society of Kenya (LSK) chairman Ahmednassir Abdullahi charged that the court had acted outside its jurisdiction, a claim supported by Kenya's Attorney General Amos Wako. AG Wako has launched an appeal which he wants heard before the 4 August referendum. Tensions are escalating.
Grenade attack on Christian rally
On Sunday 13 June 2010, six people were killed and some 104 wounded when grenades were thrown into a massive Christian rally/crusade in Nairobi's Uhuru Park. The rally, organised by religious leaders advocating a 'NO' vote in the 4 August referendum, included evangelism, prayer for the sick, and addresses from several parliamentarians from the 'NO' camp. While the rally officially concluded at 6 pm, many believers lingered, continuing in worship and prayer.
At around 6.45pm an explosion went off at the left rear of the gathering. Assuming it was something harmless, Pastor James Ng'ang'a, who was leading prayers at the time, called on those present to gather closer to the platform. However, after bloodied victims were brought to the front for prayer, Pastor Ng'ang'a, seeing the blood and the extent of their injuries, realised that the situation was serious and instructed that the wounded be taken straight to hospital. At that moment another grenade was thrown in from the right, exploding close to the main dais, killing some, wounding many and causing a stampede that resulted in many more injuries.
No security had been provided for the event, despite the fact that church leaders had requested it. While the nearest police station was only 2 km away, the police did not arrive until Bishop Margaret Wanjiru, after waiting an hour, drove to the station and personally requested police assistance.
See: Victims Recount Moments Before Blasts Went Off
John Ngirachu, Daily Nation, 14 June 2010
Military Joins Hunt for Nairobi Park Bombers
Daily Nation, 14 June 2010
In highly provocative statements, both Professor Peter Anyang Nyong'o, the Co-convener of the YES campaign Secretariat, and Hussein Khalid, the head of Muslims For Human Rights, insinuated that elements within the NO campaign might have orchestrated the bombing in order to gain sympathy for their cause.
The YES campaign has taken to wielding "hate speech" laws against those who dare speak out against what they believe are the dangers posed by the draft constitution. This of course is one of the great problems with "hate speech" laws -- they silence criticism, thus the more objectionable something is (i.e. the more there is to criticise), the more protection it is afforded.
The National Cohesion and Integration Commission (NCIC) is investigating complaints made against the Higher Education minister William Ruto, who is spearheading the NO campaign, and five other Members of Parliament.
Mr Ruto has accused the YES team of using the National Cohesion and Integration Commission (NCIC) to intimidate critics of the proposed constitution.
The NCIC wants the politicians prosecuted for "hate speech" on the grounds that they have resorted to "scaremongering" and opined that elements of the draft constitution could trigger bloodshed and evictions (on account of Balkanisation) and "religious warfare" (on account of division over kadhi courts).
The Nairobi Star reports: "Muslim leaders headed by the chairman of the Islamic Development Group Khalid Njiraini and the referendum coordinator in Lamu, Hassan Albeity, accused Ruto of creating tension and religious conflict.
"Ruto reportedly told the Kwale rally that 'to avoid serious conflict between you (Muslims) and the Christians, we must reject the proposed constitution'."
Ruto has denied that he was inciting religious groups and is refusing to apologise, saying he had merely pointed out that the division between the Muslims and Christians was unhealthy. He merely maintains that if Kadhi courts are entrenched and promoted, then divisions and tensions will inevitably escalate. For this, he is being accused of "hate speech".
See: Kenyan MPs on the spot over hate speech
By Sarah Wambui and Laban Wanambisi, 14 June 2010
Commission to probe 'No' proponents over incitement
By Beauttah Omanga, The Standard, 13 June 2010
The Kenya National Commission on Human Rights (NCHR) has welcomed the arrest of three Parliamentarians accused of "hate speech" saying such action will deter incitement to violence.
On Tuesday 15 June, NCHR Chairperson Florence Jaoko commended the government for their action, saying the government should reign on hate speech to ensure sobriety and tolerance during the ongoing campaigns on the Proposed Constitution.
"Whether it is church leaders or politicians being intolerant the law must take its course."
Criticism, however, is not incitement to violence despite the fact that the Organisation of the Islamic Conference (OIC) is busy working to have the United Nations recognise it as such.
See: The OIC & the UN: recasting 'defamation' of religions as incitement
WEA RLC News & Analysis, by Elizabeth Kendal, 24 Nov 2008
The fact that "NO" advocates were arrested for "hate speech" immediately after a "NO" rally was bombed, seems to suggest the government is very keen to blame the victim. This is how the OIC's anti-defamation measures work too. For the OIC the logic goes: "defamation"/criticism of Islam must be banned in order to prevent Islamic violence against Islam's critics. Similarly, Kenyan authorities are repressing criticism of the constitution supposedly in order to prevent political violence. But this is totally backward, upside down thinking, and a repressive misuse use of the law. It is undemocratic and a violation of free speech. Criticism is not incitement.
The YES campaign was greatly bolstered last week by the visit of US Vice President Joe Biden who publically supported the YES campaign, urging Kenyans to resist those who would use "fear" as a "tool" to perpetuate division.
He also promised Kenyans and the Kenyan government more American and foreign investment if the constitution is passed.
No wonder the government is hungry for a quick, loud, untroubled "YES".
Church rises with unpopular message
In the midst of this, the church has risen as a prophetic voice of opposition.
While the percentage of Kenyan's intending to vote YES has dropped from 64 percent to 57 percent in the past two months, only 20 percent say they will definitely vote NO, while around 19 percent are undecided.
The poll carried out between May 22 and 28 showed the NO supporters citing issues of abortion (55percent), kadhi courts (37 percent) and land (32percent) as the reasons for their stand.
The powerful, elite-driven, Muslim-backed YES camp will be furious if the constitution fails. Surveys report that many Kenyans believe that constitution must be passed if violence is to be avoided. This is a no-win situation for the Church.
The church's advocacy is taking it into the very dangerous realm of political opposition in a land with a history of political violence.
Henry Njagi, spokesman for the National Council of Churches of Kenya in Nairobi told Christian Science Monitor (CSM): "The Constitution is an important document for Kenya, but there is no reason why Kenyans should adopt a bad constitution. For Christians don't see why they should be asked to endure a constitution that is so directly against Christianity."
Mwalimu Mati, director of the Mars Group Kenya, an anticorruption watchdog that has pushed for the new constitution, is anxious. "These people are playing with fire. . . We Kenyans have short memories, we don't remember that people were killed because of the terrible effects of the stalemate of the last election, and if there is another stalemate in a future election under this current Constitution, there will be bloodshed again."
Daily nation reports: On Sunday 27 June Prime Minister Raila Odinga and his wife Ida addressed the congregation at All Saints Cathedral, telling them they should vote 'Yes' for the constitution because the Bible tells them to. To this end PM Odinga quoted 2 Corinthians 1:18-20: 'But as surely as God is faithful, our message to you is not "Yes" and "No" . . . but in him it has always been "Yes" . . .'
When Odinga took his seat the courageous Anglican Archbishop Eliud Wabukala accused him of quoting the verse out of context. After correcting the PM's misinterpretation, the Archbishop urged the church to stay united. Kenya's Anglicans have committed themselves to pray daily concerning the constitution in the lead up to the 4 August constitutional referendum.