NO CONSULTATIONS

THE ORANGE DEMOCRATIC MOVEMENT’S RESPONSE TO THE PRESIDENT’S SPEECH ON 23 FEBRUARY 2010 AT THE OPENING O THE FOURTH SESSION OF THE TENTH PARLIAMENT
NAIROBI, 5TH OF MARCH 2010

When the Orange Democratic Movement (ODM) and the Party of National Unity (PNU) signed the National Accord (Accord) on February 28th, 2008 and had it entrenched in the Constitution, the primary purpose was to resolve the crisis engulfing the country politically. Both parties realized that neither side could govern the country alone and that they needed to work together as two equal partners in restoring peace, national cohesion and in order to implement the reforms that would solve long-standing governance issues in our country.

The two principals – the Prime Minister and President – made a commitment for the need for real power sharing to move the country forward. They also stated that “a coalition must be a partnership with commitment on both sides to govern together and push through a reform agenda for the benefit of all Kenyans.”

The Accord was a political agreement between two equal partners. The political agreement was legalized through an act of parliament, then constitutionalized through its entrenchment in the Constitution. Those were three distinct and elaborate steps taken in order to ensure that all the provisions of the agreement would be respected by all concerned. Normally, political agreements do not have to be legalized or constitutionalized for them to be fully implemented. Good faith, common sense and human decency would compel parties to such agreements to adhere strictly and fully to all its provisions.

When the Accord was entrenched in the constitution, 65% of members of Parliament united without regard to party affiliations to amend the Constitution and create the offices of the Prime Minister and two Deputy Prime Ministers, with constitutional authority to perform specific functions. Section 4(1) of the Accord states that the PM “shall have authority to coordinate and supervise the execution of the functions and affairs of Government of Kenya including those of Ministries.”

Subsection 4(2) of the Accord provides that “in the formation of the coalition government, the persons to be appointed as Ministers and Assistant Ministers from the political parties that are partners in the coalition other than the President’s party, shall be nominated by the parliamentary party in the coalition.” It is further stated at section 4(3) that “the composition of the coalition government shall at all times reflect the relative parliamentary strength of the respective parties and shall at all times take into account the principle of portfolio balance.”

With respect to the removal of cabinet ministers, subsection 4(5) of the Accord is specific: “The removal of any Minister nominated by a parliamentary party of the coalition shall be made only after prior consultation and concurrence in writing with the leader of that party.”

As we have stated previously, section 4(5) of the Accord means that the President cannot dismiss an ODM Minister without first obtaining written concurrence from the Prime Minister. Similarly, the Prime Minister cannot dismiss a PNU Minister without obtaining written concurrence of the President.

However, both the Prime Minister and the President can legally dismiss the Ministers they appointed on their respective sides of the coalition without seeking or obtaining written concurrence of each other. Consultation and concurrence is only necessary if either principal want to dismiss or have dismissed a cabinet minister and senior public servant from his partner’s party.
Legally and constitutionally, the President and the Prime Minister are equals in all respects. The President’s announcement of the PM’s nominees for appointments is perfunctory. As well, the failure by the President to respect, honour and implement all the provisions of the Accord does not negate its equality provisions.

ODM has noted with grave concern that the local media has developed a suspicious tendency of blaming the Prime Minister for the actions of a coalition partner who has shown open disdain for the rule of law and good faith.

The provisions of the Accord quoted above are very important. They are written in simple, plain English for easy access for everyone. In those provisions, both a framework and structure were established - in both letter and spirit - to have a coalition government where both the PM and the President work jointly and in partnership to lead the government in restoring peace and bringing equitable development to our country.

The Accord clearly created a government belonging equally to ODM and PNU. It is a government that belongs equally to the PM and the President. This is a Grand Coalition Government. The Accord is very clear: neither President Kibaki nor PM Raila Odinga won the 2007 presidential elections. Therefore, the mandate given to both principals was a joint mandate. This is not a Kibaki government alone; nor is it an Odinga government alone.

It is imperative to note that there is no perfect constitution or law. There is no document ever crafted by a human being that was/is perfect. But no matter how well or poorly written a legal instrument is; it requires good will, courage, commitment and action to bring it into effect. That is why the two principals undertook to act in good faith and in partnership in order to fully realize the intentions that the drafters of the Accord had in mind.

Kenyans expect the two principals and all public servants working under them to exhibit – in their utterances and actions – both the letter and spirit of the Accord. In other words, neither partner is expected to issue statements, nor act as if this was his government alone.

It is for these reasons that the ODM wishes to register its displeasure regarding the President’s consistent usurpation of collective decision-making authority between him and the PM. In complete contravention of the Accord, the President more often than not makes unilateral decisions on issues that require joint deliberation. The President’s unilateralism went overboard during the official opening of the 4th session of the 10th parliament on February 23, when he delivered a one-sided speech at an auspicious state event.

The President’s speech outlined a legislative agenda that had not been discussed and agreed upon with the PM, and which ended up distorting government policy. Among the government bills set for tabling this session, the President gave a catalogue of bills, which he said are going to be introduced. They are:

i. Independent Policing Oversight Commission Bill;
ii. Police Reforms Bill;
iii. Amendments to the Witness Protection Act;
iv. The Local Government Bill;
v. Companies Bill;
vi. Insolvency Bill;
vii. Kenya Deposit Insurance Bill;
viii. The Nairobi Stock Exchange Bill;
ix. Tourism Bill;
x. National Housing Bill; and
xi. Special Economic Zones Bill.

These are important legislative initiatives that basically affect every sector of our society and economy. If passed and operationalzed, they would transform Kenya so fundamentally that one would not expect a coalition partner not to have consulted his partner during their conceptualization; drafting and introduction. In a functioning coalition, the President would have had long sessions with the PM in order to agree on these laws well ahead of time. Similarly, the President’s speech would have been agreed upon and therefore acceptable to the PM and his party.

The problem is that the President not only failed to involve the PM in the formulation of this major speech; he also excluded ODM in setting the legislative agenda for the fourth session of Parliament.

The Task Force on Police Reforms is just in the middle of evaluating modalities for reforming policing, including the formation of a civilian oversight board, when the President presents a bill that omits to mention the “civilian” nature of police accountability. Both Bills dealing with police reforms will need to incorporate new requirements in the Draft Constitution.

During the official opening of parliament, the President addresses the National Assembly in his capacity as “the head of state.” Just like Raila Odinga is the PM of the entire republic; President Kibaki is the head of state of the whole country. Yet, when he spoke on that occasion, the President did not honour the boundary between state and his party interests. Rather than confine himself to national issues, he used his speech to advance his party’s position on the corruption debate. His call for leaders to “not politicise or personalise the fight against corruption,” was aimed at scoring political points rather than uniting the country. Even the independent media was unanimous in its assessment that the President had used the state podium for partisan political rhetoric.

The same speech contained an appeal to Kenyans to “abandon the temptation to look externally for solutions that can easily be found locally.” Such posturing downgrades the vital stabilising role that the international community has played in our country. It unfairly undermines the efforts by Kofi Annan and other Eminent African Personalities in resolving conflict and diffusing the crisis. Although the President implied that the crisis that engulfed the country after the PM suspended two cabinet ministers and the President purportedly rescinded the same; the overwhelming majority of Kenyans that he was sworn to serve, do not believe him.

Such brazen circumvention of ODM’s role not only undermines the Accord but also undercuts the potential for cooperation between the two coalition partners, which we should intensify at this moment of vital national undertakings. Our worry is that it falls into a pattern of behaviour by the President to dominate the shared government.

The Prime Minister, who is aggrieved by this conduct but is more inclined to make major sacrifices in order to enable the coalition government deliver on its reform pledges, has not publicly addressed this issue. However, the President’s latest utterances and conduct make it impossible for the smooth running of the government.

As a senior partner in the coalition, ODM has already registered a dispute with the African Union over President Kibaki’s refusal to implement the Accord in its entirety and his continued flagrant violation of both the Accord and the Constitution. This cannot continue. We cannot have a coalition on paper but not by deed.

In the past, ODM tried to use the Permanent Committee on the Management of the Grand Coalition Affairs. That has not worked primarily because both the President and the Cabinet Office have refused to agree to frequent and structured meetings. In addition, resolutions of the Permanent Committee have been ignored and funds withheld for their implementation.

The restructuring of the government that the PM has repeatedly requested remain outstanding. Although the PM and President meet often, very few issues they resolve during those meetings are implemented. The reforms under all agenda items are patchy at best. There is no single/united, structured and institutional mechanism for monitoring the reforms.

ODM is very concerned by the President’s refusal to allow a complete restructuring and overhaul of the Administration Police (AP). Most Kenyans know the partisan and destructive role the APs played in the rigging and mismanagement of the 2007 presidential elections. They are also aware that partisan selective intensive recruitment, training and deployment of APs have continued. Whereas the recruitment and deployment of the regular police has stalled; the APs are being given military training; are getting sophisticated military equipment and are being armed like an elite Presidential Unit. To make matters worse, similar suspicious activities have also been noticed at the National Security Intelligence Service.

This is not the way a coalition government is managed. It is also not a situation we or any reasonable person can ignore. These situations certainly do not augur well for the conduct of fair, democratic and transparent elections in 2012. If left unaddressed, these situations would result in a conflagration of violence worse than the post-election mayhem we experienced after the rigged 2007 presidential elections.

It cannot be business as usual when the Prime Minister’s constitutional authority is being undermined, insubordination against him openly encouraged by his coalition partner, and conditions for discord and despondency artificially manufactured.

ODM is a senior partner in the coalition. It will not allow a junior partner to act recklessly in total disregard of all the principles and rules that must govern the management of a coalition government. But ODM will not join its junior partner in reckless behaviour. Under the circumstances, and because the coalition is now completely dysfunctional, ODM has resolved to seek external intervention, specifically from the AU-mandated Panel of Eminent African Personalities chaired by H.E. Kofi Annan, in order to put our house as a government in order.