allAfrica.com: Kenya: How to Implement Power Sharing Deal Between the President and Raila. (Page 1 of 3)

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.

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