THE ROOT CAUSES OF THE current impasse in Kenya are both political and legal. An extremely closely contested presidential election presented the opportunity for rejection of Kenya’s first-past-the-post, winner-take-all electoral system by the opposition.
Widespread post-election violence was deployed to countermand the disputed electoral verdict.
In exchange for accepting the presidential results, ODM pitched for “real power-sharing”. The Accord of February 28 captured the raison d’etre of power-sharing by stating:
“Given the current situation, neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward and begin the healing and reconciliation process.”
The proximate legal tussle concerns the interpretation of Section 3(3) of the National Accord and Reconciliation Act, 2008 (henceforth the Accord Act or law) which provides: “The composition of the coalition government shall at all times reflect relative strength of the respective parties, and shall at all times take into account the principle of portfolio balance.”
Second, what is the nature of the grand coalition?
Third, does ultimate executive authority lie with the President or is it shared between the President and Prime Minister?”
The 2008 Constitutional Amendment (Articles 3 and 4) and the Accord Act (Sections 3, 4, and 5) define the coalition government largely in terms of the new offices created to establish it and the manner of sharing the coalition government portfolios.
This is the case, notwithstanding a caveat in the coalition law which specifies: “(The Agreement) is not about creating positions to reward individuals.”
Several questions may be posed. Since ODM entered into a coalition agreement with Government/PNU partner, is it realistic to demand the demolition of such a government to pave the way for the constitution of a totally fresh government? Wouldn’t that radical approach have been the subject of negotiation?
Will the coalition government be one or two parallel governments? Will the two segments in government continue to actively compete or will they collaborate as provided for under the Accord?
If the two sides cannot serve as one government, obviously the life of the coalition will be fitful and short.
The saga surrounding the establishment of the coalition government seems to suggest that two centres of power are being created around the President and the Prime Minister.
No one country can be legally run by two governments. The coalition government Kenyans expected is one through which political hostilities would cease and the collective talent and energy of the entire political class used to reconstruct Kenya.
The notion that some ministries are inferior to others is alien to the Constitution. Under Article 18 of the Constitution, the President assigns to the Vice-President and the other ministers responsibility for any business of Government, including the administration of any department.
THE CONSTITUTIONAL AMENDMENT provides that the Prime Minister and deputy prime ministers shall be ministers whose principal constitutional mandate is to aid and advise the President.
Article 24 of the Constitution vests the power of constituting and abolishing offices of the Republic of Kenya and making appointments and terminating such appointments in the President.
Under the negotiated law, the President has conceded that the Prime Minister will nominate half of the Cabinet. Had the interpretation been different, the negotiators would have produced a schedule through which ministries would have been shared up-front.
Portfolio balance within the coalition law relates to Cabinet positions and not the public bureaucracy including diplomatic and parastatal positions.
Sharing of the above positions would be a major departure from current constitutional and legal provisions. This eventuality would have required specific agreement through the Accord law.
Part 3 of the Constitution on executive powers was not amended or altered by the 2008 constitutional amendment. Article 23 (1) states: “The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him.”
One of the executive functions is the authority to co-ordinate and supervise the execution of the functions and affairs of the government, including those of ministries assigned to the Prime Minister through Section 4 (1)(a) of the Accord Act.
This co-ordination and supervisory power is delegated authority to the Prime Minister.
Under Section 4 (1) (c) of the Accord law, the Prime Minister can be assigned other duties by the President. This means the President is still the sole Head of Government as well as Head of State.
Two possibilities exist through which Kenya’s political Gordian knot can be untied. The two principal negotiators can, within a few days, form a working Cabinet as provided for in the Constitution and the Accord Act.
Alternatively, the two principals can declare the coalition dissolved.
Under both the Accord and the Constitution, the coalition government must be based on the principle that the President holds ultimate executive authority and presides over one government. Only a comprehensive constitutional review will alter this position.
Prof Kibwana is a former minister for Lands.
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