Miguna Miguna: Kibe wrong on Raila's powers - The Star

Only in Kenya would you have sound bites accompanied by one-line political utterances referred to as "legal opinion by the Attorney-General". It is equally sad, disappointing and quite embarrassing when one reads "opinions" by "legal experts" like Kibe Mungai, trying to trash clear constitutional provisions through misrepresentation: (See yesterday's the Star article on Page 15 headed, None has Powers to Suspend Ministers).

Mungai says "prior to the enactment of the National Accord Act the appointment and dismissal of ministers and their assistants was governed by Sections 16 and 19 of the constitution which allowed the President to remove them".

However, he argues that "when the National Accord happened on our shores this position was marginally altered through a new section 15A(3) to provide that Parliament may provide for the appointment and termination of office of the PM, DPM and ministers."

In other words, Mungai is acknowledging that a constitutional amendment was made that significantly reduced the President's power to appoint and dismiss ministers. He is also acknowledging it is that constitutional amendment that created the position of the PM, DPMs and ministers.

But Mungai then gets carried away and confuses the functions of the three arms of government.

He argues, unreasonably, that only Parliament can appoint or remove ministers. It is baffling why Mungai casually refers to the signing of the National Accord arid its entrenchment into the constitution as a "happening" on our shores.

Mungai argues further that "the legal changes... created three positions for Raila. First, under Section 15A(4) Raila is a minister although a first among equals. Secondly... the PM whose functions are to coordinate and supervise functions of government, including those of ministries. (Note the word used is ministries rather than minister).

"Thirdly, under Section 4(2), Raila is the parliamentary leader of ODM and it is in that capacity that he nominated half of the Cabinet."

Mungai tries to term constitutional changes as "legal" hoping this would limit their significance. He purports that the National Accord was only signed and entrenched in the constitution to give Raila a job in government; that Raila is a mere "minister" and that he is only authorised to supervise "ministries" not "ministers".

Mungai then says Raila only became PM because he was the leader of ODM. What cheek?

Mungai knows that the sections he deliberately cites without quoting deal with the formation of the coalition government, which clearly stipulates that the "leader of the largest political party in the National Assembly" would become PM. Isn't it desperate for a lawyer to assert that the word "ministries" excludes "ministers"?

Mungai goes on: "The unadulterated truth is that the PM is vested with statutory powers. I readily concede the fact this revelation begs several questions in view of Section 15A(5) which provides that the National Accord Act shall be read as part of the constitution".

So what is Mungai's unadulterated truth? That the National Accord's entrenchment in the constitution amounts to a statute? Is he implying that Section 15A(5), which actually says the National Accord takes precedence over provisions of the constitution that contradict it, isn't applicable?

Mungai's argument is fundamentally incompetent and both logically and legally defective.

Everyone knows that the accord is part and parcel of the constitution and that its provisions must be read with the rest of the constitution. Mungai contradicts himself when, having stated before and after that only Parliament can suspend or dismiss ministers, he then argues that the President can, after consulting the PM.

Mungai exposes either his limited legal knowledge or obvious bias in this statement: "The constitution does not expressly authorise Kibaki with or without the consultations with or consent of the PM to suspend ministers. If the constitution does not provide for the exercise of any power that does not mean that the ambitious can claim or usurp such powers."

If the constitution does not give Kibaki power to suspend or fire ministers, why did he purport to rescind the PM's order of suspension?

From Isaiah Kabira's statement that Kibaki is Raila's boss, to Mungai's utterance that Raila is a mere minister, one sees a logical thread: That Kibaki and his PNU brigade have refused to accept, respect and come to terms with the National Accord. They have also refused to accept the tenets of a coalition government.

The writer is the PM's adviser on coalition affairs and joint secretary to the Permanent Committee on the Management of Coalition Affairs. The opinions expressed here are his own.

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