Like Nepal, Kenya is a multi-ethnic state which turned, in the 1990s, after years of authoritarian rule, to reform of the constitution to accommodate its tribal and linguistic diversity, through a democratic and accountable political system. The independence constitution (1963), carefully negotiated to accommodate the anxieties and aspirations of various communities, had been perverted, almost as soon as it was enacted, to suit the interests of those in power. Those changes took away power from the people and removed checks and balances. Powers allocated to the prime minister and to the head of state were combined in the president, creating a centre of unaccountable power, and a focus for ethnic competition.

After great resistance from autocratic President Daniel Moi, a constitution review process was initiated in December 2000. A commission of experts prepared a draft constitution for consideration by the constituent assembly (called the National Constitutional Conference), after a period of public debate. The constituent assembly began its deliberations on the draft constitution in April 2003. Between submission of the draft and the convening of the assembly, general elections produced a change of government (Kibaki becoming president). The assembly, composed of MPs, district delegates and representatives of civil society, made good progress, adopting the essential principles of the draft.

The new government withdrew its support to the draft constitution, insisting on the retention of all powers in the president, and on the unitary state. Despite this opposition, and a partial boycott of the assembly by the government, it adopted the new constitution by a substantial majority. Kibaki refused to implement it. After removing the parliamentary system of government, he submitted the draft to a referendum. It was resoundingly defeated, but this left Kenya with the old constitution. Five years later, in another general election a major issue was the fate of the constituent assembly constitution, which the opposition leader Raila Odinga promised to introduce if he won.

It is widely believed that Odinga did win, but a corrupt electoral commission declared Kibaki the winner. This plunged the country into its greatest crisis ever, with numerous deaths, massive displacements of communities, and wanton destruction of property. The world media has presented the troubles in Kenya as ethnic, with some validity. But behind the mobilisation of ethnic hatred and violence lies the miserable reality of poverty, exclusion, marginalisation and opportunism of politicians.

Ethnic groups can co-exist in peace and harmony. Without the active involvement of politicians, Kenya’s ethnic groups were able to agree on a new constitution. Just as class interests bring elites of different groups together, the common experience

of the struggle for survival produces solidarity among the poor. Ethnic identity or resentment is almost always the result of manipulation, generally by politicians intent on acquiring control of the state. The roots of conflict lie in modern state practices; access to the state and its resources is the critical objective of political elites.

Ironically, the group which suffers most in these situations consists of those who are most easily manipulated. Large numbers of people who have been killed or displaced are those who eke out an existence. A state which fails to address the underlying problems of poverty and exclusion stores up problems for the future. Kenyans embraced the constitution making process as a vehicle to unite the country in defining and pursuing values, elaborating a vision of the future, transcending ethnic or religious divisions, in which a strong national identity would co-exist with regional affiliations.

The present crisis can be traced to Kibaki’s sabotage of that constitution. People were betrayed by the denial of the constitution they had worked so hard to achieve (and now again with the rigged election). Those who resisted the transfer of power to provinces on the ground that only a strong centre can hold the country together have created the greatest threat to its integrity. A state is not strong merely because it is armed with powers, bureaucracy and weapons. A state is strong when it mobilises consent of the governed.

Fundamentally, Kenya was betrayed by its politicians. They cheated people of the right to choose their government. They tried to dominate and corrupt every sector of society, including the judiciary and the electoral commission. A vibrant civil society is necessary for non-ethnicised encounters and the promotion of common interests. With every institution that could have facilitated a peaceful resolution of the crisis thus destroyed, Kenya had to fall back on external mediation. To survive, multi-ethnic societies need leaders — like Mandela — with vision, humility and compassion, those who realise that political power is a trust and responsibility, not a resource for personal ambitions and aggrandisement.

Prof Ghai is head, Constitution Advisory Support Unit of UNDP/Nepal