Miguna Miguna: What would trigger an end to coalition? - The Star

What triggers the dissolution of the grand coalition government and with what legal, constitutional and political consequences? These are the questions Kenyans are asking and pundits are falling over themselves to understand and explain.

Embarrassingly, PNU and their sympathisers are positing that if the coalition government dissolves, then President Kibaki and the party will "continue" with the government "as it was before" with the only difference being that the Prime Minister and ODM would not be part of that government. The PNU has belligerently threatened to bring a censure motion against the PM to prepare ground for such an eventuality.

However, before we get lost in the jungle of PNU's partisan political posturing, let's examine what the law that brought this government into being says.

Section 6 of the National Accord and Reconciliation Act (2008) says the coalition stands dissolved if any of the three things happen: if the Tenth Parliament is dissolved; or if the coalition parties agree in writing; or if one coalition partner withdraws from the coalition by a resolution of the highest decision-making organ of that party in writing. A censure motion is not one of those triggers.

Under a coalition arrangement, Parliament can only be dissolved under two distinct circumstances: firstly, if the two coalition principals agree in writing that Parliament should be dissolved and elections called; or secondly, if the two coalition parties — ODM and PNU — agree through resolutions, in writing, by their respective highest decision-making organs to dissolve Parliament.

There is no legal allowance for either of the principals to act precipitously in dissolving Parliament or declaring a withdrawal from the coalition. Nor can either principal act alone. And despite a lot of noise by self-declared legal experts on these issues, there is no evidence to suggest that any of the above conditions are likely to occur. Strictly speaking, those conditions don't currently exist.

There exists no written agreement on the dissolution of the coalition. Neither ODM nor PNU has suggested that they contemplate summoning their respective national delegates' conferences to individually and separately resolve, in writing, to withdraw from the coalition. It is highly unlikely that both parties will agree in writing to dissolve the coalition.

If the coalition was dis-solved, its dissolution would result in fresh elections because the coalition is a constitutional creature brought into being by the National Accord and Reconciliation Act, which is entrenched in the constitution.

The President and Prime Minister derive their mandates from the National Accord. If the National Accord is repealed by a two thirds majority vote in the Parliament, both principals will become jobless except for positions they hold in their respective political parties.

In a democratic and constitutional democracy, the mandate to govern is granted by the people through elections. Yet the 2007 presidential elections were indeterminate and therefore gave neither the PM nor the President the mandate to govern alone. They both acknowledge this in the Preamble of the National Accord. However, the 2007 elections gave a mandate on the ODM to govern by virtue of being the largest parliamentary party.

Without the authority derived from the National Accord, both principals have no other source of legal or constitutional authority. With the dissolution of the coalition, fresh elections would be triggered so that whichever party wins the polls can govern alone.

Legally, neither party can chase the other from the coalition either through a censure motion, vote of no confidence or impeachment. The only way both principals can be replaced and the coalition government continue is if they voluntarily resign, cease to be MPs or if their political parties replace them. Is that likely to happen?

By signing the accord and declaring that "given the disputed elections and the divisions in Parliament and the country, neither side can govern without the other" and that "there needs to be real power sharing to move the country forward," both principals recognised that (a) President Kibaki's first term ended on December 30, 2007; (b) the 2007 elections resulted in no mandate being granted to any party or person; and (c) that the only mandate the coalition principals and the government have was granted by the accord, whose termination would result in the termination of the entire.government.

Under the circumstances, a vote of no confidence would be a waste of time. It would have no legal or constitutional consequence whatsoever. And to dissolve the coalition government, one must repeal the National Accord and Reconciliation Act. Such action would trigger fresh elections to enable the people to choose their leaders.

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

This entry was posted in . Bookmark the permalink.