Sunday, January 15, 2012

How court handed Raila 'secret weapon'



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By PETER LEFTIE pmutibo@ke.nationmedia.com
Posted  Saturday, January 14  2012 at  22:30
IN SUMMARY
  • The High Court ruling on the election date has inadvertently handed Prime Minister Raila Odinga an ace card to the General Election.
  • He is the only presidential candidate who has a say on when the election would be held should he reach an agreement with President Kibaki to dissolve the coalition government and pave the way for the IEBC to set the polls date.
The constitutional court’s ruling on the election date may have inadvertently handed Prime Minister Raila Odinga a secret weapon against his rivals in the presidential race.
By ruling that elections can only be held this year if the two principals agree in writing to dissolve the grand coalition, High Court judges Isaac Lenaola, David Majanja and Mumbi Ngugi gave the PM a great say in when the elections will be held, an opportunity he could exploit to his benefit. (READ: Early polls up to you, judges tell Kibaki and Raila)
Going by the ruling, the Prime Minister is the only candidate in the race for State House who has a direct say on when the elections may be held.
The judges ruled that the elections can only be lawfully held this year “within sixty days from the date on which the National Coalition is dissolved by written agreement between the President and Prime Minister” according to the National Accord and Reconciliation Act. (DOWNLOAD: Election Date Ruling)
The second option is “within sixty days from the expiry of the term of the National Assembly on 15th January 2013.”
The judges cited the Sixth Schedule of the Constitution to justify their conclusion that only President Kibaki and Mr Odinga can determine if elections will be held this year.
“We find that if the coalition is dissolved in the manner provided in section 6(b) of the National Accord and Reconciliation Act, 2008, that is, if the President and Prime Minister agree in writing to dissolve the National Coalition then the general elections shall be held in the year 2012 and in terms of section 9(2) of the Sixth Schedule, the election for the first county assemblies and governors shall also be held on the same date during 2012,” they ruled.
Were categorical
Whereas the judges were categorical that the new Constitution had done away with the old order which gave the sitting President absolute powers to dissolve Parliament and by extension determine the date of the next election, they appeared to reintroduce the same constitutional order by giving the two principals powers to dissolve the coalition government and pave the way for the elections.
Former President Moi fully exploited the powers of the old Constitution vested in the presidency to determine the election date and to outwit his opponents.
Pushed by the then nascent opposition to declare when he would dissolve Parliament to allow the first multiparty elections in 1992, Mr Moi said: “That (the election date) is my secret weapon.”
He hurriedly dissolved the Sixth Parliament when the biggest threat to his rule, the Forum for the Restoration of Democracy (Ford) had just split into two factions – one led by Kenneth Matiba and the other by Jaramogi Oginga Odinga.
President Moi exploited the powers 10 years later in an attempt to scuttle efforts to usher in a new constitutional dispensation, which would have created a level playing ground in future elections.
On the eve of the first Bomas conference, he announced the dissolution of the Eighth Parliament, effectively stalling the process given that MPs were major participants in the talks. In the grand coalition government, the two principals have often differed on major national issues.
A year ago, Mr Odinga subjected Mr Kibaki to trying moments when he publicly rejected the President’s choice of nominees for the positions of Chief Justice, Attorney-General and Director of Public Prosecutions on the grounds that they had not consulted and concurred in accordance with the law.
The President was forced to withdraw the nominees and follow due process. After the Friday ruling, Mr Odinga was guarded, only stating that he would consult with the President on the issue before making further comment.
The PM did not however rule out the possibility of the elections in March 2013. “It is a possibility, but we first have to look at the High Court ruling before we give direction,” the PM said.
While remaining noncommittal on how soon the country can expect a definite answer from the principals, Mr Odinga promised to make the consultations as short as possible to avoid causing political tensions.
“We don’t want to keep Kenyans anxious than is necessary,” he said when he received a delegation of Kirinyaga constituents at his Nairobi home on Friday.
President Kibaki has, on two recent occasions, strongly hinted at a 2012 date for the elections.
In his Jamhuri Day speech last year, he said: “As we are aware, our country will hold the General Election next year... To this end, we will be convening a pre-election national cohesion and reconciliation conference early next year.”
He repeated the message in his New Year speech: “2012 will be a transitional year. We begin a transition from a centralised to a devolved government.
“We start the journey of empowering 47 county governments that will be charged with managing the affairs of the people, at the grassroots level.”
On Saturday, presidential aspirant Peter Kenneth urged the two principals to ensure the polls are held this year in conformity with the five-year election cycle.“The coming year will also see a transition in national leadership. After two terms as your President, I will be happy to oversee a smooth transition to the new leadership that you the people, will vote into office,” he added, thanking Kenyans for the support they had extended to him during his time in office.
“The principals should ensure the elections are held in 2012 to secure their legacy of observing five year electoral cycle,” said Mr Kenneth, who is eyeing the presidency on a Kenya National Congress ticket.
Mr Kenneth said a majority of Kenyans wanted the elections to be held this year so that they could elect leaders of their choice to propel the country to greater heights.
Justice minister Mutula Kilonzo urged Mr Odinga not to take advantage of the ruling to influence the election date to his advantage.
“I do not necessarily share the same political persuasion with the Prime Minister but, over the time I have worked and interacted with him, I have not detected that extreme kind of selfishness that would make him exploit the empowerment of the ruling to his own advantage. It can backfire badly.
“Remember we also have a secret weapon in the form of a run-off,” the minister said, adding, “I posed the question to Musalia (Mudavadi) yesterday and he told me that ODM would not use the ruling to gain undue advantage over others.”
Party of National Unity (PNU) secretary-general Kiraitu Murungi dismissed arguments that the court’s ruling gave Mr Odinga a weapon over his opponents.
“For Kibaki and Raila to dissolve the coalition is a very remote possibility. The ruling does not give any of the principals a secret weapon because it is a very transparent process.
“There is very little difference between December and March. The constitutional term of President Kibaki has been preserved until there is a new President,” Mr Murungi stated.
The amendment
“As Cabinet, we had decided to make it December and we wanted to have the Constitution amended to allow for that.
“Now that the court says it is March, I don’t see the amendment being pursued. We are happy with the judgment since it gives us and everyone preparing for elections some more time.”
Mr Aden Duale, the spokesman of the United Republican Party (URP) – Eldoret North MP William Ruto’s new political vehicle – said the party was prepared for elections at any time.
“We are prepared, whether elections are held in August, December or next year,” said the Dujis MP.
“I for one do not agree with that aspect of the ruling that Parliament stands dissolved if the coalition collapses.Nominated MP George Nyamweya, who is backing the United Democratic Front (UDF) comprising youthful MPs, also warned the PM against using the ruling against his opponents.
“But, be that as it may, there will be no advantage on the part of the PM because 60 days is such a long period of time.
“In any case he will be taking us back to Moism by exploiting secret weapons against his opponents. That is what Moi used to do. We will use it against him,” he said.
Political analyst Prof Egara Kabaji ruled out any possibility of the principals disagreeing on the dissolution of Parliament to allow for elections this year.
“It will not be that easy for the two principals to agree to conspire and dissolve the coalition. Kibaki’s troops are in disarray, they are not ready.
“I do not think Raila will also want to walk out of the coalition any time soon,” said the Masinde Muliro University lecturer.
Another analyst, Prof Macharia Munene, advised against the dissolution of the coalition.
“It won’t augur well for the President and the Prime Minister to conspire to dissolve the coalition.
“They should let Parliament run its full term, unless something happens that necessitates its premature dissolution,” he said.

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