THE SOLUTION TO KENYA’S POST ELECTION CRISIS IN SIGHT

By Jerry Okungu
On January 26, 2007, I wrote about Professor Mkenya, a humble academic who has spent most of his life at the University of Nairobi since I met him there three decades ago.

This professor has taught Engineering Sciences all his life yet his clinical analysis of government structures and histories of political parties in mature democracies of Europe and the United States would leave fast talking political scientists reeling with envy.

Professor Mkenya, like all right thinking Kenyans has been concerned about the current Kenyan political crisis. Because of this concern, he invited me for a cup of tea at the Serena Hotel,now known as the House of Peace, something that he had not done for years. To tell you the truth, it was the best meeting I had had in recent times. It was as rewarding as it was enriching intellectually.

Mkenya believed then as now, that we are in this crisis because we have a wrong political system, weak institutions without checks and balances and an Executive that plays multiple and at times incongruent roles that don’t add up. He believes that for Kenya to get out of the present quagmire, a new political arrangement would have to be negotiated and built into the current constitution to avert future crises of this nature.

In our meeting at Serena Hotel, we saw two ways the mediation process could deal with the crisis in the search for a solution. We suggested that the team should divide its approach into two components. The first component would deal with immediate short term solutions while the second component would zero in on long term solutions.

First, the short term solution that would be put on the table for discussion between President Kibaki and Raila Odinga:
On this front, our own situation analysis recognized the following: that President Kibaki had been sworn in as the President of Kenya for a second term even if the process was flawed. Having occupied the seat, he might not be in a position to vacate the seat for now that easily. The reasons why President Kibaki might not want to vacate the presidency we saw to be many. They included a sense of loss and embarrassment that he, his family and political supporters would have to live with for a long time to come. Then there was the possibility that having fraudulently occupied the office for weeks, the incoming regime might want to punish him and his current staff for real and imagined crimes he might have committed. For these two compelling reasons, he might want to sit it out as long as it took.

Therefore the best option would not lie in a re-run or his vacating the office as ODM had earlier suggested. Kofi Annan team would have to find a formula that would provide room for a win-win situation for him and Raila Odinga.

To safeguard the interests of both protagonists, it would have to be a negotiated and binding settlement along the lines of the Mandela-De Clark Accord and later the CPA between El Bashir of Sudan and John Garang of the SPLM. In both examples, De Clark and El Bashir held the instruments of power just as Kibaki currently does.

When we made these suggestions a month ago before Kofi Annan set the ball rolling, we shared it with Professor Anyang Nyong’o of ODM on the advice of Professor Mkenya who co-authored the document with me. At that time, it was risky to suggest to the ODM Pentagon anything less than Kibaki vacating the seat because they strongly believed he had stolen victory from them. And for Prof. Anyang’ Nyong’o to have accepted this outrageous document and share it with the Annan team and Pentagon members was in itself progress of some sorts. The PNU side did not have access to the same document since we had no contacts there.

For those who never had access to it, our logic was simple. We needed to put a stop to death and destruction on our land. Kenya badly needed peace and a return to normalcy after one month of mayhem. Everybody had lost something in the aftermath of the chaotic election results. There was no need to continue vilifying Kivuitu, Kibaki or Raila for this or that reason. Blame game had to stop.

In our own humble opinion, we saw the solution to lie in one direction only; sharing of power between the two main contenders; ODM and PNU in the immediate future while longer term solutions were sought.

In this power sharing arrangement, we suggested that Mwai Kibaki would remain the President and Head of State while the post of Executive Prime Minister would be created through a constitutional amendment. That post would go to the party with the majority in Parliament. We also suggested that the Prime Minister’s office would need to be protected in the current constitution and that the occupier would be the Head of Government just like the President was the Head of State. Our further recommendations were that all cabinet posts, civil service jobs, military, public corporation and diplomatic appointments would be shared equitably based on party strengths in the house. All this arrangement would constitute a transition government that would last five years as Parliament embarked on far reaching constitutional reforms that would safeguard the country against future conflicts such as the one we suffered in 2008.

We further suggested that to avoid conflicts in the transition government, the Prime Minister would be answerable to Parliament while at the same time consulting, briefing and reporting to both Parliament and the President on all major decisions affecting the state.

We further suggested that the appointment of cabinet ministers and all public office chiefs would be done in consultation with the President and Parliament to encourage public trust, transparency, fairness and accountability.

As things have developed so far over the last thirty days, we see this early suggestion as the only way out to return Kenya to the path of peace and progress.

jerryokungu@gmail.com
February 24, 2008