Uhuru Kenyatta, William Ruto, Francis Muthaura and others surrounding President Kibaki believe, wrongly, that only the President has executive authority and power under the Constitution. They have so much hatred and disrespect for the Prime Minister that they have completely refused to accept the fact that under the Constitution, the PM shares power equally with the President.
They have refused to accept the fact that from February 28, 2008 when the National Accord was ratified up to August 2012, Kenya shall be governed by the grand coalition government jointly headed by President Kibaki and Prime Minister Raila Amolo Odinga. No amount of animus, propaganda, schemes or hatred will change this fact. But more ominously, their uncontrollable irrational hatred has now extended to the Speaker of the National Assembly.
Unfortunately, President Kibaki, too, operates under the wrong assumption that he is “the executive” and the coalition government is his, alone, to govern. The statement he read on the steps of Harambee House on Friday, February 18th, 2011, dismissing the Speaker Kenneth Marende’s wise ruling of Thursday, February 17th, 2011 on what virtually every reputable scholar, organ, commission and body plus the High Court and numerous NGOs have concluded were unconstitutional nominations to four key constitutional offices, was the lowest this country has degenerated since the post-election violence of 2008.
The President claimed, falsely, that he acted within his constitutional mandate in nominating the four candidates even though he disregarded the express provisions in the National Accord, the Constitution and refused to consult the PM as required.
He alleged, ridiculously, that the reports of the Departmental committee on Justice and Legal Affairs dated February 2011 and the Departmental Committee on Finance, Planning and Trade unanimously “returned a verdict” that both him and the Prime Minister acted constitutionally in relation to the nominations.
It is both painful and embarrassing to see the President who swore to “be faithful and bear true allegiance to the Republic of Kenya; and obey, preserve, protect and defend this Constitution of Kenya…and all other laws of the Republic; and to protect and uphold the sovereignty, integrity and dignity of the people of Kenya” openly lying to the country.
Contrary to the President’s misleading declaration, the PM has publicly stated that he wasn’t consulted. The President hasn’t even bothered to say when and where he consulted the PM on the nominations. He believes his word is law.
The PM has disowned the President’s nominations. Consequently, the President’s claim that he made the nominations with the PM is most unfortunate. If that were the case, why is there controversy about the nominations?
What does the President think the “constitutional court” will do; force the Speaker to admit his irregular list? How does he intend to achieve that? Under the principle of separation of powers that the President is trying to hide under, how will the court force Marende to overturn his ruling? Impeach Marende for doing his job? Or bypass Parliament and simply gazette the names?
The “Report of the Departmental Committee on Finance, Planning and Trade on the Nominations to the Office of Controller of Budget” dated February 2011 concludes that: “the Committee recommends that pursuant to Article 228(1) of the Constitution of Kenya, the nomination of Mr. William Kipkemboi Kirwa for the position of Controller of Budget be returned to the two Principals for nomination in a manner that meets the stringent legal requirements and in particular those set out under Articles 10, 27, 73 and 232 of the Constitution.”
The Committee unanimously found that the President had failed to nominate in compliance with the stringent requirements of the law and violated numerous articles of the Constitution. How then did the President conclude that the Committee agreed with him?
Contrary to the President’s misleading exuberance, there was no unanimous finding by the Departmental Committee on Justice and Legal Affairs. Their report dated February 2011 comprised “majority” and “dissenting” opinions. The PNU/KKK Committee members supported the President. However, the ODM members of the same Committee concluded that the President had acted unconstitutionally. The President therefore lied to the country when he asserted as fact that the Committee had unanimously supported him.
Nonetheless, since the Speaker ruled summarily that the motions for the adoption of both reports were inadmissible, both reports lapsed forthwith. In law, therefore, there are no reports before the House on the President’s nominations. They weren’t debated and adopted. The President was therefore wrong to refer to and purport to rely on “non documents” in defying the Speaker’s ruling. He must remember that as the MP for Othaya, the Speaker is the head of the National Assembly, and therefore his superior. Nobody – not even the President – is permitted to question the Speaker’s ruling outside the House. To transact business in the House, everyone must go through the Speaker.
On February 28th, 2008, both the President and the PM signed the National Accord. Their signatures were witnessed by the former UN Secretary General Kofi Annan, the Tanzanian President Jakaya Kikwete, former Tanzanian President Benjamin Mkapa and former South African First Lady Graca Machel. The President, the PM and Kofi Annan actually initialed each page of the National Accord to signify not just its importance but also the seriousness of the commitment and undertakings they made.
In the National Accord, both the President and the PM promised, affirmed, undertook, and stated the following: “There is a crisis in this country. The parties have come together in recognition of this crisis, and agree that a political solution is required.
Given the disputed elections and the divisions in the Parliament and the country, neither side is able to govern without the other. There needs to be real power sharing to move the country forward.
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.”
These are not mere words. They are commitments, affirmations and undertakings by both the President and the PM that have constitutional and significant moral import. They are also the philosophical cornerstones of Hon. Marande’s historic ruling.
Both the President and the PM signed the National Accord voluntarily; there was no duress. The Accord was subsequently entrenched in the old Constitution. It has been preserved and retained in the new Constitution. The Accord is therefore part and parcel of the Constitution.
As national leaders, the President and the PM underscored the seriousness of the crisis that threatened to reduce Kenya to rubble. They publicly declared their “coming together” and commitment to agree to the “political solution” as the only way of solving the crisis. They understood that the since the crisis was political, its solution had also to be political. Neither side sought the intervention of the court. They promised, undertook and committed themselves to governing together as true partners. They promised, undertook and committed themselves to share “real power.” Implicitly, it means real sharing of executive authority and power. The President and the PM publicly swore to make all major decisions and appointments jointly.
In addition, the President and the PM promised, undertook and committed themselves to govern together in good faith, through mutual trust, constant consultations and ability to compromise. Again, these are not mere words. By committing themselves to them, both President Kibaki and Prime Minister Odinga gave an undertaking to Kenya and the world that there would be no unilateral decisions and appointments as doing so would perpetuate the crisis and undermine the reform agenda for the benefit of all Kenyans. Are the President’s actions in compliance to his undertakings?
Section 12 of the Sixth Schedule of the Constitution is titled “The Executive.” It outlines what “the executive” is in the current arrangement. Sec. 12(1) states: “The persons occupying the offices of President and Prime Minister immediately before the effective date shall continue to serve as President and Prime Minister respectively, in accordance with the former Constitution and the National Accord and Reconciliation Act, 2008 until the first general elections held under this Constitution, unless they vacate office in terms of the former Constitution and the Accord.” There is no hierarchy there.
Section 12(2) and (3) provides that the lower executive cadre comprises the vice-president, the two deputy prime ministers, cabinet ministers and assistant ministers.
On February 7th, 2011, the Presidential Press Service released a statement declaring that “His Excellency Mwai Kibaki, the President and Commander in Chief of the Defence Forces of the Republic of Kenya and the Rt. Hon. Raila Odinga, Prime Minister of the Republic of Kenya have had extensive consultations…on matters of concern to the nation…On the Issue of the nominations to fill State offices currently under consideration by Parliament, the two Principals agreed to respect the ongoing parliamentary process and its outcome. Furthermore, the two Principals assured Kenyans that they will observe the letter and spirit of the Constitution including the appointment to State Offices.”
There were no references to court proceedings, orders or judgments. The statement refers to both the President and the PM as “the two Principals.” Correctly, there is no hierarchy. The Statement affirms that both Principals are equal.
The constitutional mandate to govern is shared. So why did President Kibaki insist last Friday that he has the sole constitutional mandate to nominate persons to the constitutional offices without regard to the Accord and the PM? Why didn’t the PPS statement explicitly state that the President would only respect a court order?
In any event, on the 3rd of February, 2011, Justice Musinga of the High Court ruled that the President’s nominations were unconstitutional. The parliamentary process has also now produced a final result like Justice Musinga, the Judicial Service Commission, the Commission on the Implementation of the Constitution, the Law Society of Kenya, FIDA, the International Commission of Jurists – Kenya, the Kenya Human Rights Commission, the Kenya National Commission on Human Rights, the Centre for Multi-Party Democracy and many others before it.
The Speaker unequivocally declared that the President had acted unconstitutionally and without any regard to the National Accord and without having consulted the PM as required. Why is the President defying a court order and the Speaker’s ruling?
The President should and must climb down from his belligerence. Kenya is a constitutional parliamentary democracy. We must entrench the rule of law and constitutionalism in our body politic. Nobody is above the law.
The best solution is to resuscitate the Permanent Committee on the Management of the Grand Coalition Affairs and refer the matter to it for deliberations and resolution. This is the organ of the coalition government mandated to structurally deal with contentious coalition matters. We prepared a detailed document on structured consultations and a coalition agreement that was discussed and agreed on by both sides. These documents are only waiting for adoption and use. If that’s done, all these controversies will become academic.
We must demand and insist that the President adheres to and respects the Constitution, the Accord and the institutions and organs of State. We didn’t rely on the unvetted and discredited judges (most of whom President Kibaki appointed alone) to resolve the 2007 contested presidential elections and the post-election crisis. We cannot and will not rely on the same courts now.
Ultimately, the President must remember and internalize the fact that he isn’t the “executive.” Not one person is. He is only part of the executive. The PM is the other half. He must also remember and internalize the fact that we have a new Constitution that he must adhere to. It compels him to respect his co-principal, other State organs and institutions. He must share real power if he is interested in the stability, peace and prosperity of this country. The culture of the African Big Man is gone forever!
Miguna is the PM’s advisor on Coalition Affairs. He is also the Joint Secretary to the Permanent Committee on the Management of Grand Coalition Affairs. The views expressed here are his own.
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