By EMEKA- MAYAKA GEKARA
Posted Wednesday, January 2 2013 at 18:53
Posted Wednesday, January 2 2013 at 18:53
Deputy Prime Minister Musalia Mudavadi’s dalliance with the Jubilee Alliance of Uhuru Kenyatta and William Ruto has left him with a bloody nose.
Mr Kenyatta, the Jubilee presidential nominee, has acknowledged that he had on December 4 signed an agreement to step down for Mr Mudavadi in the presidential race.
His later about-turn and subsequent ridicule of Mr Mudavadi by The National Alliance supporters has triggered debate about Mr Kenyatta’s honesty and honour.
Mr Kenyatta’s supporters have worked hard to paint Mr Mudavadi as a political lightweight, a man without numbers who fears competition and wants the presidency on a silver platter.
After signing the twilight deal, Mr Kenyatta, also a deputy Prime Minister, immediately challenged Mr Mudavadi to face him at Kasarani, a contest which was not part of deal. The agreement was that Mr Kenyatta will step down for him.
This has also raised questions on whether Mr Kenyatta’s decision to thrash a gentleman’s agreement signed in his house projects him as a man of his own word and a partner who can be trusted.
His revelation that he was persuaded to sign the deal by “dark forces” has angered elders from Mr Mudavadi’s Western Kenya backyard who have asked the DPM to return to the Orange movement. In a recent charged press conference, the elders accused Mr Kenyatta of calling them mademoni (dark forces).
The subsequent debate has been intriguing. While Mr Mudavadi is being presented as gullible, opportunistic and naïve, Mr Kenyatta - who reneged on the treaty - is being celebrated as a “hero” and clever tactician. No questions are being raised about the morality of Mr Kenyatta's act.
Prof Kindiki Kithure, a constitutional scholar, argues that legally, Mr Mudavadi has no case whatsoever. Section 2 of the Third Schedule to the Political Parties Act and the Jubilee Coalition Agreement requires that any deal or amendments must be approved by the governing bodies of the parties involved.
“There exists no evidence to prove that the governing bodies of TNA, William Ruto's United Republican Party (URP) or even Mr Mudavadi's own United Democratic Front approved Mudavadi-Uhuru secret treaty,” he says.
Secondly, Prof Kindiki says that the secret deal cannot be enforced under the law of contract. The two said that it was agreed that Mr Kenyatta would be given time to convince his party and supporters to endorse the deal. This means, argues Prof Kindiki, that Mr Kenyatta’s stepping down for Mudavadi was subject to a condition—TNA’s approval.
In other words theirs was an agreement subject to a certain other occurrence, in this case approval of TNA and Uhuru's supporters. Mr Kenyatta later declared that his party’s highest organ had rejected the secret deal, effectively frustrating the contract.
Moreover, at the time of signing the deal, neither Mr Kenyatta nor Mr Mudavadi was an official of their respective parties. They were not even members of TNA or UDF by then.
“So none of them had capacity to contract on behalf of their parties. The deal was void ab initio.”
Mr Mudavadi's predicament has been blamed on his advisors such as former Trade Minister Mukhisa Kituyi, Ikolomani MP Boni Khalwale and some sections of the media who are said to have cheered him out of ODM.
Well, the Sabatia MP, who has decided to go it alone, may have lost the legal and political argument over the deal matter, but won the moral case.
The writer is an editor with the Nation
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