Kenyan constitutional referendum, 2005
|Kenyan constitutional referendum, 2005|
|Are you for or against the ratification of the proposed new constitution?|
|Referendum held: 21 November 2005|
|This article is part of a series on the
politics and government of
The 2005 Kenyan Constitutional Referendum was held on 21 November 2005. The proposed new constitution was voted down by a 58% majority of Kenya's voters. Many government officials, including President Mwai Kibaki, had campaigned for a 'Yes' vote on the constitution, which divided the ruling National Rainbow Coalition into camps, for and against the proposal.
Despite the rising number of literate voters in Kenya (74%), votes are typically cast using symbols and text to indicate a preferred candidate. Thus, those who supported the constitution were assigned the symbol of the banana, while the opposition were assigned the orange as their means of representation.
The referendum divided Kenyans and spurred violence between Orange and Banana supporters; nine people died during the campaign period spread over several months, but the process itself was peaceful.
The main issues of contention throughout the drafting of the constitution were over how much power should be vested in the Head of State (the President, in this case), with many believing Kibaki was attempting to garner dictatorial powers. In previous drafts, those who feared a concentration of power in the president added provisions for European-style power-sharing between the President and Prime Minister. However, the final draft of the constitution retained sweeping powers for the Head of State.
The issue of land reform was also prevalent, as disputes over land amongst Kenya's numerous ethnic groups are frequent. The draft constitution sought to deal with this and included measures against the ownership of land by foreigners (white immigrants and their descendants own numerous large tracts of land in Kenya). The constitution would have also permitted women to own land for the first time (only through inheritance) and sought to establish a 'land commission' which would manage and oversee the redistribution of land (the formation of the land commission was included primarily as a means of preventing the 'gifting' of land by government officials for favours). The land commission would also serve as a human rights watchdog over land disputes and would attempt to give back land to ethnic groups and individuals who have unfairly lost land in the past.
The constitution sought also to classify land as either "government, community, or individual" property. Many have been alarmed by a more radical provision which would allow the land commission to redistribute land that is 'idle' or not being used to its fullest potential to the landless and squatters. This met the most resistance amongst absentee land owners, and nomadic groups such as the Maasai, whose land could potentially be repossessed.
'Religious courts' were also an area of concern prior to the voting. Since Islamic religious courts already exist in Kenya, demands for courts specific to other religions (mainly Christian and Hindu) were adhered to and the draft constitution provided legal basis for a number of religious judiciaries.
Because Kibaki so vigorously promoted the new constitution and based his election campaign around it, many voters used the referendum merely as means to voice their approval or disapproval of the Kibaki government. In other words, many paid little attention to the actual text of the constitution and used the 'Yes' or 'No' vote to say 'Yes' or 'No' to the president. This would become the sentiment on which the victorious Orange camp would base their demands for snap-elections, claiming the government had lost its mandate to rule as a result of the 'No' vote by the people.
There was a single opinion poll taken: 42%(No) and 32%(Yes) and Undecided (22%) & Refused to answer (4%) 
Ballot Question: Are you for or against the ratification of the proposed new constitution?
|Option||Number of votes||Percentage|
|Source: Electoral Commission of Kenya|
Of his decision Kibaki said, "Following the results of the Referendum, it has become necessary for me, as the President of the Republic, to re-organise my Government to make it more cohesive and better able to serve the people of Kenya."
Although the dismissal of individual officials is commonplace in government, the dissolution of the cabinet in its entirety is rare. The only member of the cabinet office to be spared a midterm exit was the Attorney General, whose position is constitutionally protected against Kibaki's presidential powers. Vice-President Moody Awori retained his post, however, he has been deprived of his position as Minister of Home Affairs. The dismissal of the cabinet followed a seven-month period in which its members never actually met formally, instead preferring to play political games with one another through the media. Kibaki has pledged to appoint a new cabinet within two weeks, until then he will be managing the nation's affairs single-handedly.
The cabinet had been increasingly divided for an extended period of time, and the issue of the constitution had created further fracturing. Because the National Rainbow Coalition was a grouping of several smaller parties (Democratic Party, Forum for the Restoration of Democracy-Kenya, Liberal Democratic Party, National Party of Kenya), members of the Kibaki government maintain differing agendas and loyalties, often maintaining more loyalty to their party than to the Coalition. Corruption charges and investigations into the affairs of the cabinet had gone undisciplined by the president (more information can be found on the Mwai Kibaki page), who had been criticised for not re-elling in his officials.
The response to the sacking of the cabinet and ministers by Kenyans, as a result, has been overwhelming positive. However, the opposition spearhaded by the Orange Democratic Movement (whose key members consist of a number of MPs from the now moribund cabinet) expressed that Kibaki had not gone far enough and a dissolution of both the Legislature and Administration is necessary. This combined with the referendum's failure and Kibaki's inability to deliver on his campaign promises caused an increase in demands for new elections for the entire Kenyan government by the opposition leaders.
After rallies on 27 November 2005 by the opposition demanding new elections as soon as possible, the Kenyan government outlawed all demonstrations in support of new elections. The Kibaki government dismissed the idea of early elections, and claimed that such gatherings were a 'threat to national security'. The opposition encouraged nationwide pro-election demonstrations and scheduled an Orange team led rally at Mombasa Municipal Stadium for 10 December. The government called in police to seal off access the Stadium and prevent the rally from taking place. All other pro-election rallies throughout the country were to be clamped down on by law enforcement. Kibaki postponed the reconvening of the Legislature, which was scheduled to resume its affairs on 6 December.
On 7 December 2005, exactly the two weeks he had promised to do so within, President Kibaki announced his new appointments for his Cabinet and empty minister positions. However, almost immediately a large portion of the appointees turned down the job offers, at least 19 MPs are said to have rejected the appointment. Many of those who turned down positions were members of FORD-Kenya and the NPK parties, who constitute the political backbone of Kibaki's regime. Both Ford Kenya and NPK formally withdrew their support for the Government, resulting in the rejection of the high-level posts by their MPs. Many cited a failure on Kibaki's part to consult with other member parties of the Coalition regarding the make-up of the new cabinet as the principal cause for the divergence within the Coalition.
On 9 December 2005, Kibaki carried out the swearing-in of the new cabinet made up almost exclusively of his closest political allies.
- "United Nations Statistics Division – Demographic and Social Statistics". Unstats.un.org. Retrieved 2010-04-30.
- Orange in the lead The Standard, 21 October 2005 (Poll by Steadman International)
- "Africa | Kenya's entire cabinet dismissed". BBC News. 23 November 2005. Retrieved 2010-04-30.
- "Breaking News, Business News, Financial and Investing News & More | Reuters.co.uk". Today.reuters.co.uk. 9 February 2009. Retrieved 2010-04-30.
- "afrol News – Kenya heads for government crisis". Afrol.com. Retrieved 2010-04-30.
- "Africa | Kenya opposition defies rally ban". BBC News. 28 November 2005. Retrieved 2010-04-30.