Barkan

Africa Today, April-June 1998 v45 n2 p213(12)
Toward a new constitutional framework in Kenya. Joel D. Barkan.

Abstract: The demand for a new constitutional framework in Kenya was voiced by political reformers who were dissatisfied with the results of the multiparty elections held in Dec 1992. However, its realization is correlated with the negotiation and management of factors that affect the country's status quo. The country's political coalitions should accommodate minority interests and guarantees related with the opposition and Kenya's ethnic groups.
Full Text: COPYRIGHT 1998 Africa Today Associates
As this special issue of Africa Today goes to press, Kenya may have at last taken the first significant steps toward a new constitutional framework to regulate political life. The issue of a new constitution was first raised by political reformers in 1992 following the December 1991 repeal of the section of the constitution that mandated a one-party state. Demands for constitutional reform were voiced again in 1995 by an opposition frustrated with the outcomes of multiparty elections held in December 1992, the country's first such elections in twenty-six years.(1) Those elections failed to reestablish legitimate political authority for two reasons: (1) the elections were not contested on a level playing field, but rather one marked by the state's intimidating opposition candidates and their supporters during the year-long run-up to the elections;(2) and (2) the constitution's allowing President Daniel arap Moi to be reelected with only 36 percent of the vote, because opposition voters divided their support among three parties that were unable to mount a united challenge to the regime.
The results of the 1992 parliamentary elections were similarly frustrating for the electorate and, in the eyes of many Kenyans, even more illegitimate than the 1992 presidential election; candidates of the ruling party, the Kenya African National Union (KANU), won 100 seats (53 percent of seats in the Parliament) with just under 30 percent of the vote. Were it not for gross gerrymandering, coupled with the creation of legislative districts with vastly unequal numbers of voters, the opposition would have gained a parliamentary majority.(3)
Moreover, in the aftermath of the elections, Moi and the KANU leadership refused to recognize the opposition as the legitimate, albeit fragmented, voice of a substantial majority of Kenyans. Instead of bargaining with its adversaries to establish a modus operandi for Kenyan politics in the multiparty era, the regime behaved as if nothing had changed while pursuing a three-pronged strategy of co-optation, intimidation, and divide and rule.
Similarly, the opposition failed to engage the president or to acknowledge that he and his allies were the legitimate voice of roughly one-third of the population. Nor did their 1992 election defeat provide an impetus to the principal leaders of the three opposition parties to unite into a single opposition party, or at least a coalition of parties, to mount a serious challenge to Moi. Instead, most members of the opposition refused to accept responsibility for their loss, complaining that the elections had been "rigged" and that "Moi must go." The opposition stance, coupled with Moi's strategy, stalled the process of democratization throughout the interelection period from the beginning of 1993 through the first half of 1997.
The opposition's call for constitutional reform and the regime's response are best understood in this context. Unable to unite behind a single slate of presidential and parliamentary candidates in 1992, the opposition continued to fragment. Whereas in 1992 the opposition was divided among three major parties and several minor ones, by late 1997 it had divided into at least six significant factions. Although unity is more elusive than ever, there is one thing that all opposition parties agree on - the need for constitutional reform.
The Dual Meaning of Constitutional Reform
At its most fundamental level, constitutional reform in Kenya will require a formal restructuring of the rules of the game to establish a new modus operandi under which all of the country's major political factions agree to compete and bargain with each other. (By "major factions" I mean all factions capable of disrupting the status quo.) Thus, constitutional reform will necessitate extensive and extended negotiations between KANU and the opposition, as well as within KANU and within the opposition, to accommodate the welter of minority interests that constitute political society. Most, though not all, of these interests cluster around geographic or ethnic identities. Perhaps most important, constitutional reform will require some guarantees and protection for the smallest and poorest of Kenya's ethnic groups, particularly those that form the base of President Moi's coalition - the old Kenya African Democratic Union coalition of the early 1960s that is the core of the current KANU.
Fundamental reform will thus demand a significant devolution of power, though not necessarily majimbo (i.e., a federal system in which the basic constituent units are the existing provinces), as defined in the original constitution under which Kenya gained self-rule in 1963. It will also require some mechanism of revenue sharing or block grants that guarantees the poorest regions a significant, perhaps even a compensatory, share of central government revenues. And it will require some form of pact or pardon that guarantees that Moi and his closest cronies in corruption (i.e., former vice-president George Saitoti and the minister for East African cooperation, Nicholas Biwott, as well as assorted backers in the Asian business community) will be spared prosecution for allegedly stealing upwards of U.S.$350 to $500 million from the public purse.
As it is now configured, Kenya's political opposition is unlikely to agree to such an arrangement. For the opposition constitutional reform means something quite simple: the ultimate removal of Moi and his immediate associates. As such it does not require a restructuring of the fundamental political rules but rather a series of reforms that, if enacted, will immediately enhance the political space of the opposition and civil society, establish a more level electoral playing field, and, perhaps most important, reduce the power of the office of the president and the provincial administration. Put differently, before the 1997 elections, the political opposition largely defined constitutional reform in terms of changes that would benefit the opposition in the near term rather than in terms of modifications that would establish a comprehensive set of rules offering something to all major players (including KANU) over the long run.
Because opposition forces have been able to agree on little else, it is not surprising that their demands for constitutional reform were continually parried by Moi until late in 1997. In classic Moi fashion, the president made public statements that alternated between support for constitutional change and the contention that no changes were necessary. Although the president announced as far back as 1994 that he would appoint a task force to study the need for such reform, he never did so. During the year or so before the 1997 elections, Moi shifted his position and accepted the principle of negotiating changes, but added the qualification that he would do so only after the presidential and parliamentary elections that were subsequently held on 29-30 December 1997. Given their expectation that they would be returned to power with an expanded parliamentary majority, perhaps with a two-thirds majority that would enable them to rewrite the constitution on their own, it is not surprising that Moi and KANU insisted on waiting until after the elections to consider reform. Understanding the regime's agenda, opposition forces demanded that constitutional reforms precede the elections. Indeed some threatened to boycott the elections if reforms were not agreed to before the vote.
The Evolution of the Constitutional Debate and the 1997 General Elections
As the 1997 elections approached, Moi and the KANU hardliners commenced a replay of the strategy that returned them to power in the country's 1992 reversion to multiparty elections. Although a new Electoral Commission was appointed by the president in September 1996, it retained Justice Zacheus Chesoni as its chair, along with six other holdovers from the previous commission. This continued the controversial and widely disliked practice of placing the administration of the elections in the hands of a committee handpicked by the president, with no representation for the opposition. One of the first acts of the commission was to delimit new boundaries for 210 parliamentary constituencies, which resulted in an increase of twenty-two seats. These seats were distributed across all provinces in a rough approximation of their relative population, but none was accorded to Nairobi, the region with the highest population growth and an area where KANU won only one of eight parliamentary seats in 1992. Thus voting districts continue to be disproportionate relative to population size, consistently overrepresenting KANU areas. The gerrymandering of electoral districts led one observer to conclude that, as in 1992, the outcome of the 1997 election was predetermined.(4)
Eager to augment its electoral advantage, the government sowed confusion about whether Kenyans would be required to obtain new national identification cards before registering to vote, or whether they could simply register with their identification or voter registration cards from 1992 or from recent by-elections. Contradictory statements were issued throughout the first quarter of 1997 by the president, his minister in charge of the office of the president, the chairman of the Electoral Commission, and the attorney general, raising public suspicion that the requirement of national identification cards, especially new ones, was simply a device to systematically underregister voters in areas known to be opposition strongholds.
Perhaps most troubling, leading members of the opposition came under increasing harassment in early 1997 in much the same way as in 1992. Opposition members of Parliament (MPs) were denied permits to hold rallies, were blocked from entering certain districts, and had campaign meetings disrupted. In several instances prominent opposition leaders (e.g., Paul Muite) were physically assaulted by the police. The government also sought to rein in civil society organizations, especially those with active civic education and voter education programs, charging that these activities "may even undermine the security of the state."(5) Furthermore, a new opposition party, Safina, was denied registration until a few weeks before the 1997 election.
These tactics, combined with the increasingly fragmented state of the opposition, led many observers to predict that fewer Kenyans would register to vote than in 1992 and that many opposition supporters - disgusted with the endless factional fights between opposition leaders - would simply stay home. As it turned out, during the registration period of mid-May through June, 9 million people registered to vote, which was 1.1 million more than in 1992. This was still only 70 percent of those eligible, the same rate as for the previous election. Notwithstanding the higher than expected level of registration, leaders of both KANU and the opposition expected Moi and the ruling party to triumph for the same reasons as in 1992. The only caveat was the small possibility that the president might not obtain 25 percent or more of the vote in five provinces, the minimum threshold required, in addition to an overall plurality, to win the election.(6) Opposition supporters talked openly of waiting to win until the 2002 elections, while opposition leaders shifted their objective from fighting an election they knew they were unlikely to win to changing the constitution.
The opposition's strategy to force a change in the constitution was quite simple: threaten to boycott the elections and embark on a campaign of mass demonstrations that would shift politics to the streets. The latter was not long in coming. Leaders of three opposition parties (most notably Raila Odinga, Kenneth Matiba, and Paul Muite) joined with several leaders of civil society organizations (such as the Reverend Timothy Njoya, the Reverend Manasses Kuria, Gibson Kamau Kuria, Kivutha Kibwana, Willy Mutunga, and Pheroze Nowrojee) to establish the National Convention Executive Council (NCEC) of the National Convention Assembly (NCA). Their goal has been to convene a national forum similar to those held in Francophone Africa during the early 1990s at which representatives from all political parties, as well as leaders from reform-minded nongovernmental organizations, would write a new constitution.
Consistent with its long-standing approach to the opposition, the KANU government refused any dialogue with the NCEC and sought to repress the reformers. This recalcitrant strategy played into the hands of the opposition by setting the stage for the Saba Saba Day demonstrations on 7 July 1997.(7) NCEC leaders went ahead with a proreform rally at Uhuru Park in downtown Nairobi despite being denied a permit to do so. Participants were tear-gassed, and several leaders, as well as supporters, were beaten senseless by the police. This response shocked many Kenyans, angered the international donor community, and gained Kenya unwanted worldwide publicity on CNN. Between twenty and twenty-five people died in Nairobi and at other rallies around the country. The battle lines had been clearly drawn. Yet the government had come out the loser. In the court of public opinion, both domestic and foreign, Moi had been put on the defensive for the first time since 1991, when he had been forced to repeal the constitutional provision for a one-party state.
Renewed Pressure from the International Donor Community
Although the process of political reform in Kenya has been driven mainly by domestic forces, donor influence has probably been greater than in any other African country except South Africa. Since 1991, Kenya's principal bilateral donors have lobbied for a wide range of political reforms and conditioned quick-disbursing aid on progress in this area.(8) Led by the United States, Germany, and the Scandinavian countries, a number of bilateral donors suspended aid in the early 1990s and thus helped force the return to multiparty politics and political liberalization. Together with the International Monetary Fund (IMF) and the World Bank, the bilateral donors also insisted upon changes in Kenya's macroeconomic policies, which had intensified economic stagnation and declining per capita income since the late 1980s.
An important fault line exists within the donor community regarding how best to achieve reform. The IMF and the World Bank are committed to the achievement of "good governance" - their mantra for efficient government that is free from corruption, which they view as necessary for the implementation of their macroeconomic policy reforms. An important group of bilateral donors, however, demands an end to human rights abuses and progress toward democratization, in addition to good governance and macroeconomic reform. These differing perspectives have caused some tension in the donor community. Thus, when the World Bank and the IMF resumed assistance in 1993, most bilateral donors resumed their aid only reluctantly, given the stalled democratization process.(9)
The renewal of aid by the international community no doubt contributed to the Kenyan government's hardline stance toward the opposition as the 1997 elections drew near. A series of government actions soon recaptured the donor community's attention as the government dragged its feet on reducing corruption. Prosecution of high-ranking political and business leaders accused of embezzlement in the Goldenberg scandal was halted when the case was dismissed by the court.(10) The government also fired the new director of the customs and excise department who had been appointed to end corruption at the port of Mombasa. These actions, in combination with the events of Saba Saba Day, led the IMF to suspend its U.S.$220 million Enhanced Structural Adjustment Facility program in July 1997. The World Bank and other bilateral donors followed suit, bringing the total in suspended aid to over U.S.$400 million - more than the total amount of aid suspended in 1991. Perhaps most important, the suspension of aid led to a massive flight of short-term capital investment that devalued the Kenyan shilling by approximately 20 percent, a development that sent shocks through the business community.
As with its resistance to constitutional reforms, the government's inadequate handling of the corruption issue was a gross miscalculation that played into the hands of the opposition. The business community, including some Kikuyus who had returned to Moi's camp after supporting the opposition in 1992, distanced itself from the president. At the same time, bilateral donors, led by the United States, publicly urged the government to enter into a dialogue with the opposition on the matter of constitutional reform.
Ethnic Clashes: A Tragedy of Deja Vu
Last, but not least, the reemergence of "ethnic clashes" toward the end of August 1997 brought Kenya to the brink of political chaos and ultimately forced Moi to concede to what he termed "minimum" reforms before the elections. These so-called ethnic clashes mirror those that preceded the 1992 elections, when approximately 1,500 supporters of the opposition were killed and 250,000 left homeless. The victims at that time were mainly members of the Kikuyu and other ethnic groups that inhabited peripheral areas of the Rift Valley Province, the heartland of the Moi regime. The current clashes have occurred on the coast south of Mombasa, and have taken the form of attacks on "foreigners" from "upcountry" (i.e., Kikuyu, Luo, and members of other groups that oppose KANU). The attacks are orchestrated by hardline elements within the regime to intimidate opposition supporters and are perpetrated by "raiders" who are bused into local communities from outside.(11) Approximately sixty-five individuals had been killed and 10,000 left homeless by late 1997.(12) By that time, the attacks also had reduced tourism (the country's leading source of foreign exchange) on the Kenyan coast by roughly 50 percent. This intensified downward pressure on the shilling. As in 1992, these raids drew together not only opposition political parties but several elements of civil society, including the Catholic Church and the principal Protestant churches, as well as NGOs and the donor community, all of whom demand reform. With the economy sinking and pressure rising from both the donors and the opposition, the president beat a tactical retreat.
Inter-Parties Parliamentary Group Versus the National Convention Assembly
A masterful tactician of politics, Moi agreed to negotiate a reform package on condition that the negotiations involve only MPs, "the elected representatives of the Kenyan people," and not a national constitutional assembly involving both MPs and representatives of civil society. The president thus explicitly ruled out negotiations with representatives of the principal organizations demanding reform through the NCEC and NCA, and encouraged an internal settlement to be worked out by a group of MPs calling themselves the Inter-Parties Parliamentary Group (IPPG). Led by maverick opposition MP George Anyona, a former detainee who had not joined any of the three principal opposition parties in 1992, the IPPG sought to create a middle ground between KANU hardliners, who refused all negotiation, and opposition hardliners, who demanded negotiations via the NCEC and NCA. Moi also supported the IPPG because 70 percent of the 100 to 125 MPs who participated in the IPPG belonged to KANU, although they are of the more pragmatic KANU A faction that has grown increasingly restive under Moi's rule.
Perhaps most significant, Moi and his closest advisers were betting that by accepting a package of minimal reforms before the elections, the public would desert the NCEC and the opposition would be forced to contest the elections that it was sure to lose. Acceptance of minimal reforms was also considered likely to further divide the opposition between hardliners and others, thereby increasing the likelihood of the opposition forces' defeat at the polls. Both calculations appear to have been correct. Having been put on the defensive by the opposition for the first time in five years, the president regained the initiative. By supporting the IPPG, which successfully negotiated a reform package in early September 1997, Moi again took the proverbial wind out of the opposition's sails.
This sudden shift of fortunes illustrates a fundamental problem of the opposition leaders - namely, that they invariably underestimate the political skill of the president. They repeatedly forget, as he took pleasure in reminding them soon after the return of multiparty politics in 1992, that he is the only member of Parliament from the first class of eight African MPs elected in 1957 to the British Legislative Council who still holds elective office. "I am," as he also reminded his adversaries in a public speech, "the Professor of Politics."
As enacted into law in October and early November 1997, the reforms negotiated by the IPPG consist of the following changes to the existing constitution and legislation:
* The reestablishment of the Electoral Commission as an entity independent of the president and the enlargement of the present Electoral Commission from eleven to twenty-one members through the appointment of ten representatives from the opposition.
* The establishment of a level playing field for subsequent elections by repealing or significantly amending the Chiefs' Authority Act, the Public Order Act, the Preservation of Public Security Act, and the Police Act - all of which the provincial administration and the police have used to bar candidates from moving freely about the country and from addressing public meetings.
* The immediate registration of all unregistered political parties, including Safina.
* The establishment of a separate and independent court to hear all petitions and complaints regarding alleged election irregularities.
* Amendment of the Kenya Broadcasting Corporation Act to require that the "Corporation keep a fair balance in all respects in allocation of broadcasting hours as between different political viewpoints."
* Repeal or significant amendment of the sedition laws, the main mechanism by which the government has harassed the press and civil society.
* Repeal of the requirement that the president only appoint government ministers from MPs of the ruling party, thus permitting the formation of a coalition government.
* An agreement that the twelve nominated members of Parliament should be appointed proportionally from all parties rather than only from the ruling party.
* Agreement to establish a constitutional review commission after the elections.
The reforms negotiated by the IPPG are regarded as "minimal" by both the regime and the opposition. They are also minimal insofar as they do not change the basic constitutional framework of the Kenyan political system. Kenya will remain a presidential system in which the president can be elected with a small plurality of the vote, provided he or she obtains 25 percent in five of the country's eight provinces. As he conferred his blessing upon the IPPG, Moi explicitly rejected a proposed constitutional requirement that presidential candidates obtain 50 percent of the vote, or that there be a runoff election between the top two candidates. Thus it was possible for Moi to be reelected with only a plurality of the vote, as in 1992.
Nor did the reforms create a parliamentary system of government that would dramatically reduce the power of the office of the president. The executive branch remains free from direct accountability to the legislative branch. The reforms may, however, indirectly limit some aspects of presidential power by curtailing the authority of the provincial administration and the police, both of which report directly to the office of the president.
The reforms call for an enlargement of the Electoral Commission through the appointment of representatives from the opposition and for the statutory independence of the commission, but they do not provide for any structural changes in the nature of the electoral system. Kenya continues to elect 210 of its 222 MPs from single-member districts of grossly unequal population size on the basis of "first past the post," with the result that, as in 1992, KANU won an artificial majority of seats with less than 40 percent of the popular vote. Indeed, the IPPG appears not to have considered changing the electoral system to one based on proportional representation (PR) as in South Africa and Namibia, or to a system based on some combination of PR and district-based representation. Furthermore, little or no thought presumably was given to a requirement that all constituencies contain an equal number of registered voters, or to a two-round system (requiring runoff elections in which no candidate secured a majority of the vote) that would guarantee that those elected to Parliament represent a majority of voters.
Finally, the IPPG has only partly addressed the ethnic and regional basis of Kenyan politics. It failed to discuss whether an appropriate mechanism for devolving power could be established to protect the interests of the smallest and poorest of Kenya's ethnic groups. Clearly, federalism on the basis of Kenya's existing seven provinces and Nairobi, as enacted in the old majimbo constitution of 1963, is not acceptable to the leaders of Kenya's largest ethnic groups, particularly the Kikuyu, whose members constitute a significant minority of the Rift Valley Province. Conversely, any form of federalism that devolves power to smaller and more socially homogeneous administrative units, such as districts, is unlikely to be accepted by the leaders of the smaller ethnic groups (i.e., the leaders of KANU) unless coupled with financial and other guarantees that protect the interests of these groups. The only IPPG reform that might facilitate power sharing is the repeal of the constitutional provision that required the president to appoint the cabinet from members of his own party. While this reform cleared the way for a coalition government, Moi only appointed members of KANU to his cabinet after the election. Had the president, on the other hand, appointed a coalition government, his purpose would no doubt have been to co-opt opposition leaders rather than to facilitate the sharing of power. Indeed, the provision for a coalition government might ultimately facilitate a return to presidential authority based on patrimonialism, the foundation of Moi's old one-party state.
If the reforms do not provide for a new constitutional order, and risk a return to the old, what do they offer Kenyans? If fully implemented, they may restart the democratization process begun in December 1991 by enlarging the political space within which the opposition and civil society, as well as the press, can function. They may substantially reduce - though they are not likely to eliminate - the harshness and arbitrariness of the Moi regime's approach to the opposition. The emergence of the IPPG and the process of negotiation it facilitated may also herald the beginning of deeper constitutional reform negotiations between the government and the opposition. Finally, the reforms may encourage a climate of greater tolerance and trust between the regime and its critics. Without such tolerance, negotiations over the more fundamental questions of constitutional reform cannot occur. In short, the IPPG reforms may constitute an important first step toward resolving Kenya's political stalemate. The principal protagonists to the current stalemate, or at least the pragmatists among them, realize that the issues of fundamental constitutional reform must now be placed firmly on Kenya's political agenda.
Pacts and Prognosis
As noted, both the government and opposition regard the IPPG agreements as a pact of minimal reforms, not as a fundamental reworking of Kenya's constitutional framework that will provide long-term stability. They are at most a stopgap package agreed to by the president with the expectation that he and KANU would win the 1997 elections handily.
Viewed from this perspective, the constitutional amendments are an almost perfect example of the sequence of agreements identified by Guillermo O'Donnell and Philippe Schmitter as the basis for the transitions from authoritarian rule that occurred in Latin America in the late 1970s and early 1980s.(13) In Latin America, and perhaps now in Kenya, the incumbent regime is divided between hardliners and softliners. While the former want to suppress the opposition with a heavy hand, the softliners regard this approach as counterproductive and not likely to appease reformers in the opposition in the long term. Thus the softliners seek to perpetuate authoritarian rule by making piecemeal reforms. Put differently, the softliners play for time, recognizing that even though full reform may be inevitable, they still have the opportunity to shape the outcome of the reform process to protect their vital interests. By late 1997, Moi had detached himself from the hardliners in KANU and tilted toward the moderates.
The fight over who will succeed Moi within KANU may retard the pact-making process. While Moi's closest allies are hardliners (the so-called KANU B faction that looks to former vice-president George Saitoti as Moi's probable successor), younger and more pragmatic members of KANU - especially members from the Rift Valley who believe that their communities have not been served by the regime - search for a viable alternative. Were the opposition to unite, or should elements within it reach out to the disaffected factions within KANU or to KANU A, it is quite possible that a centrist, proreform coalition could emerge as the logical successor to the IPPG.
Politics in Kenya are currently very fluid and difficult to predict. But it is a fluidity out of which a new constitutional order may ultimately emerge. Regardless of whether Moi and his associates support fundamental reforms in the short run, they cannot hold back the process for more than a few years. At seventy-four, Moi is the last of the old generation of African leaders that exemplified personal rule based on neopatrimonial practice. Like Mobutu before him, Nyayo will soon be an artifact of history.(14)
Postscript
Kenya held its second multiparty elections of the decade on 29-30 December 1997. Despite their earlier threat to boycott the elections, all opposition parties (except Kenneth Matiba's FORD-Asili) nominated candidates and campaigned for office. Notwithstanding the widespread anticipation of President Moi's reelection, 68 percent of registered voters (over 6.1 million Kenyans) turned out for the elections, the same as in 1992.
Fifteen presidential candidates appeared on the ballot, 887 candidates competed for 210 seats in the National Assembly, and more than 8,000 candidates competed for 2,955 local council seats. As predicted, Moi was reelected (with 40.5 percent of the vote).(15) He was followed by Mwai Kibaki with 31.0 percent, Raila Odinga with 10.8 percent, Kijana Wamalwa with 8.2 percent, and Charity Ngilu with 7.9 percent. By contrast, Moi had won only 36 percent of the vote in 1992.
Even though the bulk of the president's vote came from the same areas of the country and ethnic groups that have been his political base for more than thirty years, and his percentage of the vote in these areas was the same as his percentage in 1992, Moi doubled his previous share of the vote in the opposition strongholds of Nairobi, Central, Western, and Nyanza provinces. As in 1992 he was the only candidate to obtain at least 25 percent of the vote in five provinces. Only one other candidate, Mwai Kibaki, passed the 25 percent threshold in more than one. Once again Moi won because the opposition was divided - this time among four significant opponents instead of three.
In the elections for the National Assembly, KANU won 107 seats of the 210 seats (51.0 percent of the total), only two percentage points less than in 1992. The Democratic Party, the party of the Kikuyu, was second with thirty-nine seats (or 18.7 percent of the total). As in 1992 Moi ran ahead of his party, whose parliamentary candidates obtained 38 percent of the total parliamentary vote. Most crucially, he will not be in a position to dictate further revisions of the constitution, since KANU fell well short of the two-thirds majority required for constitutional amendments.(16)
Perhaps equally significant, the elections galvanized civil society into a force that is likely to have a major impact on the future of Kenyan politics, particularly the process of constitutional reform. In contrast to 1992, when 5,000 domestic observers monitored the elections in coordination with international observers, more than 28,000 Kenyans were recruited, trained, and posted to polling stations throughout the country in 1997. These Kenyan election observers, who were organized by a coalition of the Catholic Church, the National Council of Churches of Kenya, and the Institute of Education for Democracy (IED), demonstrated a degree of organization and commitment unthinkable a few years ago. Having demonstrated their collective strength, it is unlikely that these groups will remain quiet in the postelection period.
The international donor community also played a more refined role in 1997 than in 1992. Rather than flood Kenya with large numbers of international observers who can visit only a few polling stations on the day of the election, the international community mounted a continuous and coordinated observation effort through a combination of resident diplomatic personnel and short-term advisers familiar with Kenya. In a continuation of support begun in 1992, the donor community, including the United States Agency for International Development, provided approximately U.S.$2 million in funding and technical assistance to civil society organizations that monitored the elections.
As he begins his final term, the self-described "Professor of Politics" faces a difficult choice. Does Moi end his career as a political statesman by carrying through on his promise to negotiate fundamental constitutional reforms with the opposition? Or does he stonewall the opposition as he did following the 1992 elections and risk the return of politics in the streets? Likewise, the opposition faces a hard choice. Does it reach out, engage, and seek compromise with the president, or does it continue to confront him and KANU on every issue? The opportunities and stakes for both sides and for Kenya are great.
Notes
1. See "Proposals for a Model Constitution for Kenya," Nairobi Law Monthly 51 (January 1995): 8-32.
2. For an overview of the events see Joel D. Barkan, "Kenya: Lessons from a Flawed Election," Journal of Democracy 4, no. 3 (July 1993): 85-99. For a more extensive discussion see also the final report of the National Election Monitoring Unit (NEMU), The Kenyan General Elections.' 29 December, 1992 (Nairobi: NEMU, 1993).
3. Roddy Fox, "Bleak Future for Multi-Party Elections in Kenya," Journal of Modern African Studies 34, no. 4 (December 1996): 597-607. Fox demonstrates how districts that supported KANU candidates were significantly and consistently smaller in terms of their number of registered voters than districts that supported the opposition. Residents of KANU districts are thus overrepresented in the National Assembly, while residents of opposition districts are underrepresented. The districts were actually established in 1988 during the one-party era to enhance the representation of the areas of the country most supportive of Moi.
4. Fox, "Bleak Future."
5. As read from a circular from the office of the president to officers in the provincial administration by the district officer for Loitokitok on 22 March 1997. Quotation supplied by the Embassy of the Kingdom of Denmark.
6. As the opposition fragmented, the possibility of five or six candidates with strong regional followings winning 80 to 90 percent of the vote in their home areas while denying each other 25 percent outside their homelands became real.
7. Saba saba, Kiswahili for seven seven, applied to the date of 7 July.
8. Quick-disbursing aid consists of cash grants and loans made by donors to cover budgetary and balance-of-trade deficits of recipient countries. Such aid should not be confused with project assistance, such as family planning programs or the construction of infrastructure. The latter forms of aid were not suspended by the donors, though the overall level of assistance to Kenya declined.
9. A notable exception has been the United States, which by late 1997 had yet to resume quick-disbursing aid and which has seen its overall aid program in Kenya decline from U.S.$60 million in 1991 to between U.S.$17 and $22 million since 1993. By contrast, Japan, which has not been as concerned with democratization, has become Kenya's largest bilateral source of foreign assistance.
10. "Goldenberg," Kenya's equivalent to Watergate, is a mammoth U.S.$350 million scam dating back to 1992 that reportedly involved (among others) former vice-president George Saitoti and the former head of the Central Bank. Its notoriety is partly a result of the estimate that the sums stolen from the Kenyan treasury were roughly the equivalent of all foreign assistance withheld by the donors.
11. Many observers of the situation, both domestic and foreign, attribute leadership of the clashes to Nicholas Biwott, the self-proclaimed "total man" of Kenyan politics and a close business associate of Moi and his son Gideon. Forced out of the cabinet in 1991 by the donors, Moi brought Biwott back into the cabinet in late 1996 as the elections approached. Not surprisingly, Biwott has denied responsibility for the clashes.
12. Some reports indicate that as of the beginning of October 1997, as many as 100,000 may have been homeless, but this figure has yet to be verified. Whatever the number, the forced displacement of Kenyans from their homes is a reminder of the cynicism with which the regime has approached multiparty democracy.
13. Guillermo O'Donnell and Philippe C. Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions About Uncertain Democracies (Baltimore: Johns Hopkins University Press, 1986), especially chapters 3 and 4.
14. Nyayo (footsteps in Kiswahili) is the official slogan and identifier of the Moi regime.
15. These figures were provided to the author by the Institute of Education for Democracy, the principal domestic monitoring organization responsible for compiling the results.
16. Because of the agreement negotiated by the IPPG that the president appoint nominated MPs proportionately from all parties, KANU obtained only six of the twelve nominated posts while the opposition obtained six. KANU thus holds 113 out of 222 seats, thirty-five short of the 148 required to pass constitutional amendments on its own.
Joel Barkan is professor of political science at the University of Iowa. During 1997-1998 he has been a senior fellow at the United States Institute of Peace. His most recent book, of which he is the editor, is Beyond Capitalism vs. Socialism in Kenya and Tanzania (Boulder, Colo.: Lynne Rienner Publishers, 1994). He thanks Johns Hopkins University Press for permission to include here, in a modified form, some material that appears in "Kenya Tries Again," published in the April 1998 issue of the Journal of Democracy.

Article A21107496