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The dispute provoked by Raila Odinga's decision to suspend two ministers goes beyond the question of whether or not he consulted President Kibaki. The real issue is whether ministers can be suspended from office either under the constitution or the National Accord.

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. 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, DPMs and ministers.

The legal changes to establish the coalition created three positions for Raila. First, under Section 15A(4) Raila is a minister although the first among equals. Secondly under Sections 3(1) and 4(1) of the accord, Raila is the Prime Minister whose functions are to co-ordinate and supervise the functions of government, including those of ministries. (Note the word used is ministries rather than ministers). 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.

By now the keen reader must have noticed the inconvenient truth that lawyers such as Miguna Miguna have been trying to mask or muddle with litres of ink over the last two years, namely that the so-called constitutional powers of the PM are nothing but legal fiction.

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.

However, there are three quick rejoinders to the envisaged counter-argument. First, the words that an Act of Parliament "shall be read as part of this constitution" does not make a given statute a part of the constitution or confer its provisions the same status as constitutional provisions but simply requires that the same be read jointly with the constitution to give its full meaning and effect.

Secondly, in anticipation of the National Accord, Section 3 of the constitution was amended to give it constitutional immunity from challenge in court on the grounds of inconsistency with the constitution. Thirdly, the Act was actually passed using simple majority voting rules and can be repealed in the same way just like other statutes.

Viewed this way, the question as to whether the PM can lawfully suspend ministers is easy to answer. First as PM, Raila has no such power because according to Section 51 of the Interpretation and General Provisions Act Cap 2, the powers to suspend arise from the power of appointment.

Secondly, as the parliamentary leader of ODM, Raila cannot dismiss or remove ministers — including those from ODM — because Section 4(5) of the Act recognises that the removal of ministers shall be by the President except that he must be consulted when it comes to ODM ministers. Even after the enactment of the Act, the appointment and removal of ministers remains the constitutional function of the President.

Finally it is doubtful whether the President himself with or without the consultation with or consent of Raila can suspend ministers. At the technical level, so long as appointment and dismissal of ministers is government by the constitution, Section 51 of the Interpretation Act (Cap 2) does not apply and so the fact that the President appoints and dismisses ministers does not give him the power to suspend them.

The Act does not apply to the constitution because, unlike the National Accord Act and other statutes, the constitution is not considered a statute.

Secondly, there is no such thing as disciplining of ministers which would entail powers of suspension. In the nature of their functions ministers are either in office or out — there is no middle ground. There are good reasons why this is so.

Since suspension creates no vacancy in the Cabinet there would be a constitutional vacuum if the President could exercise such powers because one man rule could easily be created through suspension of ministers. In short, as integral components of government, ministers are never suspended, they are removed and replaced to ensure smooth government.

Thirdly, 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. In democracies the law enumerates all the powers of the governors — unenumerated powers vests in the people and is not exercisable by whoever claims such powers.

Finally, so long as the constitutional status of Raila is that of minister of the government, law, reason and common sense dictate that he has no power to suspend, let alone remove, fellow ministers. It is really this simple when you think about it without blinkers!

Mungai is a lawyer.