By MURITHI MUTIGA mmutiga@ke.nationmedia.comPosted Saturday, February 19 2011 at 21:00
The stalemate between ODM and PNU over the contested nominations to constitutional offices can be traced back to three critical months last year when the constitution drafting process came to an end.
Some of the most critical breakthroughs were achieved when the Parliamentary Select Committee on the constitution retreated to Naivasha to discuss the Committee of Experts draft.
During that meeting, the ODM members associated with Prime Minister Raila Odinga were clearly in the minority.
The balance of power in the committee lay with the PNU team headed by Finance minister Uhuru Kenyatta, who was backed by the ODM MPs allied to Mr William Ruto.
String of setbacks
The Raila team, led at the meeting by ministers James Orengo and Musalia Mudavadi, suffered a string of setbacks.
The PM had been a leading campaigner for dispersal of powers from the presidency to other institutions including the Prime Minister’s office. The Naivasha consensus deleted the position of PM from the Constitution in its entirety, dealing a significant blow to Mr Odinga.
The PM’s allies advocated a robust system of devolution, including a three-tier devolved structure that would create powerful jimbos more or less along the lines of the geographical provinces but with vastly expanded powers.
This, too, was defeated, although Mr Ruto’s men on this score leaned towards the Odinga side due to the interests of their constituents.
The PM and his men left Naivasha defeated and deflated. Mr Odinga’s vocal sidekick, Miguna Miguna, wrote a number of opinion articles bitterly denouncing the Naivasha consensus.
But, away from the cameras, those with sympathies for the ODM leader appeared to have regrouped and outsmarted PNU when the draft went back to the Committee of Experts.
Fateful line
There, the final draft emerged with the fateful line, in article 29 (2) of the transitional clause, which states: “Unless this schedule prescribes otherwise, when this Constitution requires an appointment to be made by the President with the approval of the National Assembly, until after the first elections under this Constitution, the President shall, subject to the National Accord and Reconciliation Act, appoint a person after consultation with the Prime Minister and with the approval of the National Assembly.”
That provision effectively negated all the work the PNU side had done in attempting to outflank the ODM-Raila wing in Naivasha. It meant that Mr Odinga would remain a central player in the government until 2012.
Some PNU activists such as Prof Peter Kagwanja immediately recognised what a significant win that provision in the transitional clauses was for the ODM side.
Capturing power
“Accepting that Naivasha was irreversible,” Prof Kagwanja wrote in an opinion article on March 13, 2010: “ODM appears to have embarked on crafting a two-pronged strategy aimed at capturing power after the referendum and retaining it with ease after 2012 …”
The cornerstone of this master-stroke strategy is the “incumbency theory”— itself hoisted on the maxim that “incumbents do not lose elections,” more so in fragile Africa.
The practical side to the “incumbency theory” is the National Accord as the foundation of the post-referendum power relations on the road to 2012. In line with this, the CoE retained almost intact the Naivasha consensus on the key contentious issues — executive, devolved government, and representation.
But it crafted completely new transitional provisions, which enhance the powers of the Prime Minister during the 2010-2012 transition period when the Kibaki presidency will enter its lame duck phase.
Ultimately, the full tenure for the Accord is guaranteed by the inherent fear among MPs of a premature end to the 10th Parliament, plunging them into costly elections before they have paid all their loans and dues. This time will enable the PM to gradually assume the double-status of a ‘‘crown-prince’’ and ‘‘incumbent.’’
Key offices
The draft in Parliament also enables the Prime Minister to influence the appointment of occupants of key offices, including a new Chief Justice, the Chief of Intelligence (whose tenure of office has been removed) and the Inspector General of a now combined police force.
The battle for supremacy in the negotiation for the new Constitutional order has come to rotate around the axis of the transitional provisions.
Those words proved farsighted. Attempts by PNU to sideline the PM after the Constitution was endorsed, despite the National Accord having clearly stated he would be in that office for five years, were scuttled by that provision in the transitional clauses.
Despite having superior numbers in Naivasha, ultimately PNU and ODM-Ruto won the battle but appear to have lost the war to ODM-Raila.
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