Kibaki grapples with changing times

By BEAUTTAH OMANGAPresident Kibaki is staring at a stormy final term in office, with some of his hitherto unchallenged powers clipped by the National Accord and the new Constitution.
For close to 40 years Kenyans were led by all-powerful presidents whose words were law, but that appears to have changed. Kibaki’s two presidential terms have been unlike those of Kenyatta and Moi whose words were taken as final. As the transition leader between the old and new constitutions, Kibaki faces a rapidly changing landscape with the diminishing powers of the presidency now vested in the people of Kenya by the new laws.
The National Accord that established the Grand Coalition Government, and the enactment of a new Constitution that distributes powers previously exclusive to the president have checked his hitherto unrivalled powers.

Provisions in the new Constitution, promulgated on August 27 last year, now make it difficult for President Kibaki (centre) to make unilateral decisions in Government. [PHOTO: FILE/STANDARD]

It is now difficult for Kibaki to make unilateral decisions, and it is his failure to acknowledge this fact that has put him in some embarrassing positions, exposing chinks in his armour.
His bungled appointments to key constitutional offices, and the failed diplomatic offensive to postpone the two International Criminal Court (ICC) cases facing six personalities, including Deputy Prime Minister Uhuru Kenyatta, seen as his preferred choice as successor, and his trusted aide, Head of Civil Service and Secretary to the Cabinet Francis Muthaura are recent examples.
New lawsHowever, senior counsel and former Kabete MP, Paul Muite says Kibaki’s predicament stems from his decision to behave as though there is no new Constitution.
"All these happenings show that President Kibaki’s leadership has been inept when you look at it from the political front. Future presidents must learn to govern in accordance with the Constitution and the law," said Muite.
While Kibaki and his allies have been pushing for a deferral of the cases, Prime Minister Raila Odinga and his Orange Democratic Movement Party have opposed their postponement at The Hague.
During his first term in office Kibaki assumed total control of the running of the State, even though he was widely seen as allowing his ministers to run their dockets without interference. The frustrations within Kibaki’s ranks have been evident from public comments his allies have made recently.
Vice President Kalonzo Musyoka was the latest to express his dissatisfaction with Raila.
When asked to comment on why an informal meeting with the UN Security Council was delayed last week, the VP retorted, "go and ask Tinga (Raila) about it".
When House Speaker Kenneth Marende ruled that the nominations by Kibaki to the four key constitutional offices would not be debated by Parliament, Uhuru openly displayed his anger against Raila.
Uhuru fury"Why is it that unless Raila agrees, there is always a standoff. Who is he? Will nothing happen in this country unless Raila says so?" asked an incensed Uhuru at a press conference in Parliament Buildings.
Under another dispensation, it would not be the president’s men grumbling in public.
According to some perspectives, however, Kibaki’s final term may be a blessing in disguise for Kenyans, because it is argued that a future president will not have the audacity to force his unilateral ways on the country.
Some legislators loyal to Kibaki in a Government torn down the middle accept this argument, but others argue Kibaki has "refused to exercise his powers".
Agriculture Assistant Minister Kareke Mbiuki says that Kibaki has indeed been rendered powerless by a number of factors.
He says the new Constitution denies Kibaki unfettered powers and that future presidents will have to contend with a strong Parliament.
"No other President shall rule by decree. All workings of future presidents shall be vetoed by Parliament," said the assistant Agriculture Minister.
Justice and Constitutional Affairs Minister Mutula Kilonzo says founding president Jomo Kenyatta and Moi were technically "above the Constitution" but that the trend has now changed.
"President Kibaki having championed the new Constitution is in a class of his own, unlike his predecessor. Future Presidents will be subject to the new Constitution, but not above it as were Presidents Kenyatta and Moi," said Mutula.
Imperial powersUnlike his predecessors who enjoyed what many termed as imperial powers, Kibaki has watched helplessly as his Executive decisions are trashed both in Parliament and in public.
Under Kenyatta and Moi, decisions made at Harambee House were final, but under the new dispensation, the presidency appears to have lost that clout.
A vote in Parliament is enough to alter any appointments made by Kibaki, and cases abound where the president has been forced to retreat. Besides the political maturity of Kenyans who have developed the courage to challenge presidential decisions, a major check on Kibaki is the National Accord that makes Raila his equal in Government.
The Accord dictates that the President must at all times consult the PM when making appointments.
In Parliament, legislators have also exercising their enhanced powers and this has also worked against Kibaki.
The first sign that Kibaki would not have an easy ride came in 2008, when Parliament rejected his attempt to renew Justice Aaron Ringera’s tenure at the helm of the Kenya Anti-Corruption Commission (KACC).
The President had no choice but to comply and allow the KACC board to advertise the position, carry out interviews and recommend to him a suitable successor.
From that day the writing was on the wall and MPs kept on pushing the presidency.
The next onslaught came when MPs pushed for no-confidence votes against Cabinet Ministers close to him.
Moses Wetang’ula, Amos Kimunya were among key Kibaki allies who were tossed out of office thanks in part to Parliament’s assertiveness.
Last month, the President was forced to eat humble pie when the PM, constitutional commissions and civil society ganged up against nominations he made to key offices including that of Chief Justice.
When the heat became too much to take, he withdrew the names and referred the issues to relevant organs in compliance with laid-down procedures.
But some of Kibaki’s die-hard supporters, like PNU Deputy Secretary General Jeremiah Kioni, argue Kibaki has powers but has chosen to exercise restraint.
"The President has simply refused to exercise his powers. This is not going to be expected of future presidents and Kenyans want a president who can exercise the authority given to him, but not in a dictatorial manner," said the Ndaragwa MP.
Lame duckKipkelion MP Magerer Langat says that the Constitution has ended the imperial presidency.
"The President is not a lame duck, but his powers have been checked by the new Constitution and there is nothing he can do. There is no more dictatorship as Kenyans are now more aware than before of their rights," said Magerer who is an Assistant Minister for Energy.
Under the new Constitution, the President lost power to determine the number of ministries, the date of General Election and the right to summon and dissolve parliament.
Parliament, which resumes sitting on Tuesday, does it on its own without the involvement of the presidency, which has traditionally enjoyed the power of recalling MPs to transact business.