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Kenya: Constitution to Blame for Confusion in Grand Coalition
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The Nation (Nairobi)
OPINION
12 May 2008
Posted to the web 12 May 2008
P L O Lumumba
Nairobi
Establishment of the Grand Coalition Cabinet was followed by confusion over the exact powers and functions of the Prime Minister in relation to both the President and the Vice-President. This culminated in the embarrassing public tussle between Prime Minister Raila Odinga and Vice-President Kalonzo Musyoka over who is superior in the pecking order.
Lawyer P L O LUMUMBA, former secretary of the Constitution of Kenya Review Commission, points out the flaws that need to be corrected in both the Constitution and the National Accord and Reconciliation Act to fix the defects and provide clarity.
Leaders at a tea break during last week's induction seminar for ministers, assistant ministers and permanent secretaries at the Kenya School of Monetary Studies in Nairobi on Friday. Photos/PETERSON GITHAIGA
Once the protagonist parties, Party of National Unity (PNU) and Orange Democratic Movement (ODM) agreed that the current Constitution had to be amended to anchor the new law (National Accord and Reconciliation Act, 2008) they were conceding the Supremacy of the Constitution.
Creation of the Prime Minister and the two deputies, therefore, had to be via the Constitution hence introduction of the Section 15(A), which provides in part:
(1) There shall be a Prime Minister of the Government of Kenya.
(2) There shall be two Deputy Prime Ministers of the Government of Kenya.
(3) Parliament may, by an Act of Parliament and notwithstanding any other provision of this Constitution, provide for:
(a) the appointment and termination of the office of the Prime Minister;
(b) the functions and powers of the Prime Minister and Deputy Prime Ministers;
(c) the establishment of a coalition Government;
(d) any other matter incidental to or connected with the foregoing.
The creation of the Prime Minister's office was done in accordance with the Constitution Section 23(2) as read against 23(1). Both provisions state as follows:
Section 23(1) - 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.
Section 23(2) - Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the President.
The PM's office, therefore, derives direct authority from the Constitution as regards the functions set out in Section 4(1) of the Act, which are:
(a) Authority to co-ordinate and supervise the execution of the functions and affairs of the Government, including those of Ministries;
(b) Assignment of any of the co-ordination responsibilities of his office to the Deputy Prime Ministers, as well as one of them to deputise for him;
(c) Performance of such other duties as may be assigned to him by the President or under the written law.
Section 15A (5) also reveals that the National Accord and Reconciliation Act is incorporated into the Constitution by reference. It says that the Act shall while in force be read as part of the Constitution.
However, it is instructive that both the Act and the Constitutional Amendment do not affect the status of the President as the Head of State and Head of Government. This is in keeping with Section 23(1), which vests Executive power in the President and allows it to be exercised either directly or indirectly.
Under the National Accord and Reconciliation Act, the Coalition comes into being when appointments have been made by the President after prior consultation with the Parliamentary Leader of the Party (or Parties) in the Coalition.
Portfolio balance
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The process of constituting the Coalition is provided for under Section 4(2) of the Act. It states that in the formation of the coalition Government, the persons to be appointed as Ministers and Assistant Ministers from the political parties that are partners in the coalition other than the President's party shall be nominated by the parliamentary leader of the party in the coalition and thereafter there shall be full consultation with the President on the appointment of all Ministers.
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