Donald B. Kipkorir
3 May 2008
opinion
Last week, Prime Minister Raila Odinga and President Kibaki led a peace delegation to parts of Rift Valley Province to sow seeds of reconciliation, which saw the country breathe a sigh of relief.
But while in Eldoret, Prof George Saitoti, the minister for Internal Security, wanted to rearrange the political hierarchy. The position by Prof Saitoti has been taken up and supported by ministers Martha Karua and Mutula Kilonzo.
Now, a circular from the office of Mr Francis Muthaura, the Head of Public Service, attempts to give efficacy to this position. With deference to Prof Saitoti, Ms Karua, Mr Kilonzo and Mr Muthaura, I hold a different view.
To say that in the political hierarchy it is President Kibaki, Mr Kalonzo Musyoka and Mr Odinga in that descending pecking order is plainly erroneous.
National strife
The Grand Coalition Government does not result from benevolence of any leader, but the national strife we faced as a country. Most coalition governments arise because one political party fails to achieve the constitutional thresh-hold needed.
However, in Kenya, our Grand Coalition Government was forced on us because of botched presidential polls and the ensuing violence and loss of life and property.
Before the current government, the Constitution we had made the Presidency supreme and imperial. The President was the Head of State and Government, Commander-in-Chief of the Armed Forces and the sole and ultimate repository of Executive authority. All public offices and officers were at the pleasure of the President.
In the excesses of President Daniel arap Moi's rule, appointments and dismissals were aired on KBC radio's 1pm news. Ministers, on being sacked, were bundled out of their houses and cars. We watched many episodes that reminded us of the ancient Roman gladiator blood sports.
True partners
In signing the accord, Mr Odinga and President Kibaki as equals said inter alia that " we are stepping forward together as political leaders to overcome the current crisis we commit ourselves to work together in good faith as true partners ...". This expression of goodwill and partnership was enacted into law in The National Accord and Reconciliation Act, 2008 (hereinafter called the Accord).
This pact was signed by Mr Odinga and President Kibaki and witnessed by President Jakaya Kikwete and Mr Kofi Annan as the chairman of the mediation team.
In the Accord, the Prime Minister is to come from the party with the biggest number of MPs. He is to coordinate and supervise the execution, functions and affairs of the Government. Also, the composition of the coalition Government was at all times to reflect the parliamentary strength of each political party to the coalition and portfolio balance to be maintained. By virtue of the parliamentary strength of ODM, it fell upon Mr Odinga to be appointed Prime Minister.
Constitutional law relates to the highest ideals of a country. A nation-state arrives at what it thinks is its highest form of defining how its government functions, composition, structures and its intra-relationships are regulated. This constitutional order can be unwritten as the UK has opted or written as the USA has chosen.
Kenya, like most backward countries, has a written Constitution that is a document of convenience and nuisance, depending on what the presidency wants.
The Accord, which is embedded in the Constitution, puts Kenya in a unique position. How do we reconcile the power-sharing between Mr Odinga and President Kibaki and the parts of the Constitution that make the President and his VP seem pre-eminent vis-à-vis the Prime Minister?
The establishment of the coalition Government is based on the Accord and not the Constitution as it existed prior. The Accord must be interpreted in such a way that it gives meaning and effect to the intention of the two signatories and not any other person.
The mediation talks at Serena Hotel were going nowhere and we know from the pronouncements of PNU representatives there, that they were against power-sharing between the party and ODM. It was because of this selfish impasse that Mr Annan went directly to the principals and had the Accord signed.
The constitutional interpretation, which Ms Karua and Mr Kilonzo are giving, is pre-Accord. All constitutional scholars and courts are in unanimity in holding that words of the Constitution and even ordinary statutes cannot be added or subtracted of meaning by Parliament or courts.
Once enacted, the law means what it says. Interpreting constitutional instruments assumes a higher responsibility as the intention of its framers must never be diluted. If, therefore, Mr Odinga and President Kibaki intended to share power as equal partners, that is what it means.
When signing the Accord that made them equal partners, the two were cognisant of the existing Constitution and other statutes. It is for this reason that both agreed, among other things, that ministers cannot be sacked without written concurrence, and also that the coalition can only end by mutual written agreement. The pre-Accord Constitution gave the President the sole authority to appoint and dismiss ministers and to dissolve the Government.
Because of this partnership, section 15A (6) of the Constitution, being an amendment, states in clear and unambiguous terms that the Accord shall not be held to be contravening the Constitution.
Plain and simple
The plain and simple meaning of this is that for as long as it lasts, the Accord, in the event of any conflict with other parts of the Constitution, takes precedence. It is a temporary supplant of pre-existing constitutional order and amounts to a soft coup.
In this new arrangement, the Prime Minister takes the power to supervise and co-ordinate Government functions, while the President still has such other powers including head of the Armed Forces. My thesis is that our Government is co-regency in which Mr Odinga and Mr Kibaki are equal partners, albeit one is the Prime Minister and the other President.
Our pre-Accord Constitution envisaged the President to be one who had the highest cast valid votes, and was to form his Cabinet from MPs irrespective of party affiliation. The Accord changes this foundation as till now, no one knows who won the presidential election. The coalition government as constituted enables the President and Prime Minister to come together in equal partnership.
What is Mr Musyoka's role? I want to remind him that all those who want to make him rank higher than Mr Odinga do not mean well for him. The 2012 elections are in the cross-bars of all politicians and may want to use his office in their own grand schemes. Being non-signatory to the Accord disentitles him to such claims of seniority in hierarchy to the Prime Minister.
The Accord was clear as it was between two principals and was to create equal power-sharing. Power can, therefore, be shared equally between the principals.
Create absurdity
To say that he ranks higher than Mr Odinga will create absurdity in the law as it will mean also that Mr Musyoka ranks higher than President Kibaki!
One of the cardinal principles of interpreting the law is that it must not lead to an absurd and ambiguous meaning.
In ancient Rome, Marcus Brutus, Gaius Cassius and Decimus Albinus were close confidantes and friends of Julius Caesar and his leading praise jesters. On March 15, 44BC, Julius Caesar was killed by the senators and the conspirators were led by his jesters! History is full of court jesters.
In the issue of protocol between Mr Odinga and President Kibaki, the latter, by virtue of occupying the Office of the President that is in charge of the Armed Forces, takes precedence. In all constitutional monarchies, the King or Queen, are heads of the Armed Forces and receive diplomatic credentials and are recognised first in protocol even if real power rests with the Prime Minister.
In our unique case, real power is shared equally. Mr Odinga and President Kibaki are equal partners but the President is for protocol purposes, primus inter pares. Any other interpretation is cynical and self-serving.
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