Wachira Maina
26 February 2008
opinion
Nairobi — It is not hard to see what will happen to Kenya if a settlement is not reached between the Government and the Opposition in the ongoing political negotiations mediated by Dr Kofi Annan.
Violence in the Rift Valley and Nyanza will resume and intensify; Uganda, Southern Sudan and Rwanda will be blockaded; transport, in recent years a major hard currency earner, will collapse; the current food shortages in parts of the country will deepen and urban food prices will spike.
The region will be destabilised and the current economic crisis compounded. Most worrying, and as the International Crisis Group warns, militias are arming. This should give pause to all. There are between 1.9 to 3.2 million small arms in private hands in the Southern Sudan and probably twice that number in Somalia. Kenya's borders with both countries are open spillways, allowing easy inflow of these weapons.
A deal must be reached if Kenya's descent into what the Economist calls 'hell' is to be arrested. Happily, the key elements of an outline deal are on the table: power-sharing between the president and a prime-minister within a government of national unity, constitutional reform within a year, a re-run of the presidential election in two to three years and long-term measures to deal with poverty and inter-ethnic inequalities. But none of these proposals has been fully thought through and how to implement will be difficult and controversial.
Consider the power-sharing proposal first. The details are not agreed but the arguments on both sides are clear and entrenched. The Government says that any power-sharing between the president and the proposed prime-minister must be within the current Constitution.
Amend the constitution
Though the Constitution does not provide for a prime minister, the argument is that the language is permissive enough to allow such a position to be created.
The Orange Democratic Movement doesn't like that proposal and insists that any power sharing deal be secured by amending the Constitution.
The government responds that constitutional reforms will be done within a year, so why bother with amendments now? This seemingly sensible response overlooks the history between President Kibaki and Raila Odinga. The last time Mr Odinga was promised a prime-minister's position under the current Constitution, he ended up as Roads and Public Works minister.
But there are other, more compelling arguments: the executive power of the Republic is vested in the President. Any informal agreement that these powers will be shared between the President and a prime-minister plainly violates the Constitution and opens room for litigation challenging decisions made by the proposed Premier.
In addition, the prime minister would be clearly outranked by the vice-president, the Head of State's chief deputy and successor. By their lights, ODM sees the PNU proposal as an invitation to join the Kibaki government not a deal to share power.
Given both the antecedents and the legal complications, ODM's concern would surely be how to make a deal stick. Given the President's plenary powers under the current constitution, how is that to be done?
In most governments of national unity, there are in-built ratchets that make it hard for either party to double-cross the other. For example, the parties may agree to mutual vetoes that allow each to block decisions that hurt its interests. Precisely which decisions are subject to veto is usually part of the initial settlement.
But even if both Mr Kibaki and Mr Odinga could bridge the chasm of distrust between them, they must be alert to limits of a government of national unity. It would not be a solution to the crisis and it has many in-built flaws that could cause future difficulties. First, a GNU is an elite deal. The masses will remain divided and the structural causes of ethnic conflict will persist.
Secondly, such governments tend to reward those able to mobilise their ethnic groups rather than politicians who have cross-ethnic support but are unable to mobilize specific ethnic groups.
By rewarding those who appeal to ethnicity, such governments often entrench the very factors that cause the crisis in the first place. As the experience of Bosnia Herzegovina shows, political settlements may end conflict and yet fail to promote inter-ethnic co-operation. Thirdly, even though power sharing is a desirable and necessary path from deadly conflict, it is not a viable solution to the deep-seated problems of ethnically divided societies.
Allocate resources
Inevitably, power sharing generates rigidities, inefficiencies and investment of political energies towards allocating resources between ethnic groups rather than managing the country.
These realities suggest that a government of national unity should have a narrow mandate and a short duration. For Kenya, this probably means that its mandate should be to normalise and calm the country, agree a raft of legal reforms to restore the integrity of the electoral system including appointing new electoral commissioners and agree a new framework for making a new constitution.
This leads to the second proposal on the table: the enacting of a new constitution within a year. Both sides agree that such reforms are urgent and necessary. But whether such reforms can be achieved within the proposed time-frame depends on how the new constitution is to come into force.
To begin with, a referendum is surely out of the question in the wake of the deadly post-election conflict. A vote would merely confirm and reinforce the divisions that are already so sharpened. More dangerously, like our recent election, a referendum risks producing the same 'all or nothing' outcome that has brought us to the current crisis. It would inevitably exacerbate tensions and generate post-referendum turbulence no less deadly than that now afoot.
Almost as destabilising would be the fratricidal rifts that must surely emerge in a Kibaki-Raila government as it tries to hammer out an agreement on broad constitutional reforms.
The range of issues that need to be agreed for an overhaul of the Constitution are probably well beyond what these two protagonists, already deadlocked over much smaller issues, could ever hope to agree.
An alternative suggestion, pushed by ODM, is that Parliament should enact the Bomas Draft.
But this is way too divisive and, as is, both the Bomas Draft and the suggestion itself, rest on dubious legitimacy.
National Assembly
The rejection of the Wako Draft in the 2005 referendum was not, surely, a reverse endorsement of the Bomas Draft, many of whose provisions remain controversial. Moreover, ODM has neither the numbers in the National Assembly nor the overwhelming electoral mandate that it would need to justify having its proposal accepted whole cloth. Indeed, if you put aside the 'flag of convenience' marriage between PNU and ODM-K, the truth is that a majority of voters rejected both Mr Kibaki and Mr Odinga.
Mr Musyoka and Mr Kibaki's voters were surely more than Mr Odinga's which, if combined with the ODM-Kenya leaders' were, in turn, more than thoseof the Presideent.
This leaves few viable options.
The most sensible one is to limit the mandate of the GNU to four issues: electoral reform, including powers and appointment of a new electoral commission; agreement of a legal framework for making a new constitution; an agreement on the modalities and framework for dealing with underlying causes of the current crisis and overseeing a new presidential election in two or three years.
The President then elected and the government subsequently formed would have the mandate to oversee the making of a new constitution.
The re-run of the presidential election is the third proposal on the table.
There seems to be growing public support for this idea, but some clarity and reforms are needed before that happens.
First, President Kibaki's supporters must remember that won't be a candidate in the re-run.
Be the first to Write a Comment!
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
