August 1, 2010 / 2:18 PM / 8 years ago

Q+A-Contentious issues in Kenya's referendum

NAIROBI, Aug 1 (Reuters) - Kenya will hold a referendum on a draft constitution on Aug.4, seen as important to avoid a repeat of the post-election tribal bloodletting, which took east Africa’s largest economy to the brink of anarchy in 2008.

Kenyans have been waiting decades for a new constitution to replace one dating back to independence from Britain in 1963 that critics say has exacerbated corruption and tribalism.

The three main issues that divide the “yes” and the “no” camps most are land ownership, legalisation of abortion in certain cases and the inclusion of Muslim kadhi courts.


Opponents of the charter have criticised clauses aimed at putting caps on land ownership. Although the changes are meant to target people who have acquired land illegally, the “no” camp has been accused of playing on people’s fears of losing land, a divisive issue that often emerges during electioneering.

The draft law proposes to rectify past wrongs and make better use of potentially productive land by putting a cap on private land holdings.

Land dished out for political favours over the years could be taken away by the state and distributed more equitably.

This is a major worry for corrupt land cartels, and is seen as the underlying reason why many in the “no” camp are campaigning against the new charter.

The new charter was a key provision in the power-sharing deal struck between President Mwai Kibaki and Prime Minister Raila Odinga to end the post-election violence that followed a hotly-contested election in 2007.

Some 1,300 people were killed and hundreds of thousands fled their homes in the violence, which revealed deep, simmering tensions over land and power.

Odinga’s former ally, William Ruto, a cabinet minister based in the Rift Valley, is spearheading the “no” campaign, which is angry with the clauses related to land ownership.

Kibaki’s Kikuyu tribe and the Kalenjin of former President Daniel Arap Moi — who opposes the new law — have dominated Kenya’s post-colonial politics and acquired swathes of land across the country and in the fertile Rift Valley in particular.

Other tribes, such as the Luo of Odinga, say they have been politically and economically marginalised.

Ruto’s Kalenjin community was the main beneficiary of the allocations during Moi’s 24-years in power, while many Kikuyus benefited under Kenya’s first President Jomo Kenyatta, a Kikuyu.

Kenya’s lands minister James Orengo, a Luo, has said land has historically been an extremely contentious issue in Kenya, and the draft is the first attempt to comprehensively deal with the issue in a way that cures historical injustices.

“Failure to enact the constitution will raise the possibility of social strife to the detriment of all Kenyans,” Orengo was quoted as saying by the Sunday Nation newspaper.


Abortion is one of the biggest issues cited by the “no” campaign in a country of around 36 million that is largely made up of conservative Christians. The law would make abortion legal on medical grounds.

The new constitution says abortion would not be permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law.

However, the church insists the weak drafting of the clause could justify on-demand abortion.

Surveys show the “no” camp has secured the support of the Catholic and powerful evangelical churches over abortion, but not all of their congregations are ready to follow their lead.

Pollsters say around two-thirds of Catholics and Protestants would say “yes”, and a similar margin of Muslims back the draft, despite the fact that none of the religions condone abortion.

Asked how the position of church leaders has affected their relationship with their church, 44.5 percent said they had developed doubts about their church leadership.


Opposition to the Muslim kadhi courts has brought together Christian clergy and some politicians to oppose the proposed constitution. The kadhi courts deal with matters of marriage, divorce and inheritance among Muslims.

The referendum has heightened differences between Kenya’s Muslims and its Christian churches, which have criticised the draft constitution for including the kadhi courts, saying it would give power to religious courts in a secular nation.

The religious tensions coincide with security concerns in the region with authorities on high alert against Muslim insurgents in neighbouring Somalia.

Al Shabaab, a Somali rebel group which professes loyalty to al Qaeda, claimed responsibility for two bomb attacks in Uganda which increased concerns about Shabaab’s ability to carry out more attacks in the region and beyond.

Kenya’s constitution has provided for kadhi courts since 1963, with the courts serving the mainly coastal Muslim population, but the east African country’s secular High Court has jurisdiction over civil and criminal matters.

A kadhi court verdict can be appealed at the High Court.

The constitution proposes to widen the sphere of the kadhi courts beyond Coast Province, meaning their jurisdiction would expand across the nation and their scope would increase.

Kenya’s population of about 40 million is about 45 percent Protestant, 33 percent Roman Catholic and 10 percent Muslim, the rest following indigenous faiths or other beliefs. (Editing by Jon Hemming)

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