Why Kibwana's views on two centres of power are hollow

Reading Prof Kivutha Kibwana’s opinion on power-sharing, one gets the feeling that not even eminent scholars can be looked upon to genuinely guide the country in times of trouble.

Prof Kibwana’s views are largely in agreement with those of senior counsel Mutula Kilonzo, who belatedly takes the view that ODM’s demand on power-sharing are unconstitutional.

Prof Kibwana asks whether it is possible to demolish the current Cabinet to pave the way for a new one. He wonders whether that should not have been a subject of Annan negotiation.

The nature of Cabinet that we should be having in place, and how the same is to be appointed, are clearly spelt out in Section 3 of the National Accord Act, which law came into operation two weeks ago. The question, the good law scholar should be asking is: “Is the Cabinet, as currently constituted, in compliance with the relevant law?”

Prof Kibwana takes the view that all ministries are equal. In theory yes, but section 4(3) of the National Accord Act, in providing for portfolio balance, clearly acknowledges that there are superior ministries. In any event, the current stalemate is as a result of the inequalities of ministries.

Quite strangely, Prof Kibwana has elected to mislead readers on the constitutional mandates of the Prime Minister and his deputies. Section 4 (1) of the Accord Act, which has been entrenched in the Constitution, gives the premier one specific constitutional responsibility, namely, coordinate and supervise execution of Government functions and affairs.

It must be stated that, this is not a delegated function that the principal (president) can withdraw. It is a constitutional mandate that can only be taken away by the same Constitution through an amendment.

Further, Prof Kibwana poses that Article 24 of the Constitution gives the President the prerogative to, among others, allocate ministerial positions. Section 4 (2) of the National Accord Act has since taken away that prerogative.

The most crucial executive power that Parliament, acting pursuant to article 23(2) of the Kenyan Constitution has chopped away from the presidency, is the authority to hire and fire half of the Cabinet.

As if that is not enough, the President must now consult the PM on appointment of his ministers, and that the President’s team of ministers, as well as the prime minister’s, shall be constitutionally supervised by the PM. Appointment of Cabinet is now a joint function of the President and the PM. There could be no other evidence of two centres of powers.

It is astonishing how proponents of executive presidency have chosen to read Article 23(i), leaving out Sub Article 23(ii). The latter permitted Parliament to take away, from the President, any amount of executive authority and vest it in whoever it deems fit. It is exactly in this regard that our Parliament enacted the National Accord Act.

Under Article 2 and 3 sub-articles 5&,6 of the Constitution of Kenya (Amendment) Act, 2008, the National Accord Act has been elevated to the same level as the Kenyan Constitution. This, therefore, means that a larger portion of the Kenyan Constitution, dealing with executive authority of the President, has been amended.

If I may ask Prof Kibwana and the likes, what is stopping President Kibaki from going ahead and form a Cabinet pursuant to Articles 16(i) 18, 19, 23 and 24?


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