Gitau Warigi: Without goodwill, we are headed for another gridlock

It is now clear that PNU and ODM differ fundamentally in their interpretations of the National Accord laws. And given the situation, we must also face up to the question of whether the “principals” can ever work together productively. The experience since 2003 has not been a happy one.

Even if a lean cabinet is realised and portfolios balanced properly and proportionately, I forsee continuing problems when it comes to the civil service bureaucracy. Start from the top with permanent secretaries. Even if by happenstance the ODM get to have its share of them, the chain of authority will still be blurred. As things stand, the president can conceivably fire them whenever he chooses (which he cannot do with ODM-appointed ministers). It is not clear Mr Raila Odinga can fire even those PSs whose appointments he would have influenced.

The whole arrangement depends on good faith, which is clearly not there. One should anticipate daily quarrels in the running of the government. In the absence of clear markers, Mr Francis Muthaura can choose to give PSs his own directives to circumvent those of the prime minister. Without powers of transfer or disciplinary sanction, it is not clear how the latter won’t be boxed in. Then the whole gridlock will re-surface.

I THINK CALLS FOR A FRESH ELECTION to break the logjam, which are now coming from all sides, should be given a hearing. When coalitions in other countries fail to move, elections automatically follow. Granted, the situation is different in our case.

Many politicians who are otherwise talking of the Accord have missed something very crucial in its wording. Were the proposed coalition to break down, which can be activated by a simple act of one partner notifying the other that they wished not to continue with the arrangement any longer, no automatic election is called for. Not until 2012. Whoever ensured this clause was inserted was quite crafty. That is why when ODM’s Parliamentary Group indicated the party was suspending negotiations on power-sharing, Mr Odinga was quick to clarify afterwards that he remained committed to the talks.

IN MY VIEW, NONETHELESS, IT would still be bad politics to let the Accord wither and not hold an election soon afterward to let voters have their say. The problem in our case is that we have a unique set of circumstances. For starters, the current Electoral Commission is never again going to be considered an acceptable arbiter. To reconstitute it with the necessary legal architecture would take time, months maybe.

The pathetic situation of the internally displaced persons must also be factored into the equation.

A new election poses its own complex problems. The country got dangerously polarised last time, and the divisions remain intact. A new election is going to split the country right in the middle again. An ideal solution is where a constitutional framework is first brokered and, through some properly worked out power-sharing arrangement or some such other mechanism, these divisions get diffused to less dangerous levels.

If naming a cabinet alone can lead to severe gridlock, expect worse when it comes to crafting a new constitution. Yet this must inevitably be done somehow. No doubt, it will be next to impossible for the two divided sides to agree on the details of this new constitution, even when you leave out the question of who in the meantime will be wielding power. (Maybe they both could agree on a kind of transitional administration).

It is simply out of the question to imagine PNU can drive the process exclusively minus the other side. It will only create a worse backlash than the one that led to the Banana-Orange mess of 2005. Frankly, we will need a miracle here.

Other issues are more straightforward. In the situation we are in, the process of coming up with this new constitution should be compressed into a matter of months. It is up to Kenyans to decide whether we will require a fresh slate of contestants.

Part of the difficulty of implementing the Accord has to do with the fact that certain powers are being extracted from an incumbent. Given a new constitution, fresh candidates will not find it too much of a problem to share power between themselves. The most important thing, however, is that these powers must be clearly defined, and not in the vague manner the Accord reads.

Conducting negotiations through the megaphone of the media, either by strategic leaks of negotiating positions or through hardline press conferences, is another problem in itself. The other mistake arises from the expectations of western diplomats that a shot-gun marriage that is very short on goodwill will ever work.

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