Thursday, April 10, 2008




Source: Kenya Media

7th April 2008

His Excellency Mwai Kibaki, CGH, MP

President of the Republic of Kenya

Office of the President,

P.O. Box 30510,


Your Excellency,


The meeting yesterday adjourned to allow for consultations until this
afternoon, after you declined further discussions on portfolio balance and
instead insisted on your proposed allocation of ministries.

Our party is deeply concerned that the stalemate over the formation of the
Grand Coalition Government is increasing uncertainty and anxiety in the
country. It is also escalating the mistrust that we as leaders were expected
to eliminate by the establishment of the Grand Coalition.

The National Accord and Reconciliation Act is already in force. It must be
understood that ODM and PNU are equal partners in the Grand Coalition. The
failure to form the Grand Coalition Government is in fact a continuing
breach of the Act and the Constitution.

We have always acted in good faith and conveyed to Your Excellency that the
Grand Coalition would be one government. The positions PNU is staking claim
to imply that we are forming a government with two cabinets. On the
contrary, this is a Grand Coalition of two equal partners sharing executive
power on a 50-50 basis.

It is becoming clear to our party that your side is reluctant to honour the
spirit and principles of the National Accord and Reconciliation Act. I
therefore wish to let you know that the following issues must be resolved in
the course of our further consultations on the formation of the Government:

1. The Current Cabinet

The current cabinet should be dissolved to allow for the formation of a
fresh Cabinet in accordance with the Act.

2. Portfolio Balance

Although we reluctantly conceded to an enlarged cabinet against the wishes
of Kenyans, our party now maintains that the Grand Coalition Cabinet should
not exceed 34 ministries. Allocations of portfolios must be based on the
agreement of 3rd April 2008 in which we agreed that the PNU side nominates
appointments in the Finance and Security portfolios and in return, ODM would
nominate Ministers to the following portfolios:

· Local Government

· Foreign Affairs

· Transport

· Energy

· Cabinet Affairs

It is important I reiterate that the above represents and remains our
Party's irreducible minimum position. We attach hereto, for your ease of
reference, the full ODM Portfolio Balance List, which was delivered to you
last Friday.

3. Structure and Organization of Government

The following must also be agreed upon in advance:

· An acceptable classification of ministries;

· A clear definition of the roles and responsibilities of the Office of the
Prime Minister;

· The structure and organization of government, including the
rationalisation of the roles of the Head of the Public Service and Secretary
to the Cabinet;

· Appointment of the Permanent Secretaries;

· Appointment of Ambassadors and High Commissioners; and the

· Appointment of the Chairpersons, Directors and Chief Executives of
parastatals, and constitutional offices.

I propose that a Joint Team of four members, two from each side, be
constituted to build consensus on these issues within the next three days.

Please confirm your acceptance of the above before the meeting this

Yours truly,

Hon Raila Odinga, EGH, MP

Prime Minister-Designate


7 April 08

With cries of jubilation and Happy New Years, Kenyans on 28th February began
to breathe freely again as the National Accord brokered by Mr. Kofi Annan
was signed by President Kibaki and myself. The terror and fear they had been
living under at the hands of mobs, militias and government forces was
finally over. A few weeks later, Parliament unanimously entrenched the
Accord into the Constitution and Laws of Kenya.

But since then, Kenyans have observed with growing dismay and anxiety that
not a single concrete agreement has been achieved on any aspect of the new
coalition government. Our nation is adrift and without direction, and with
each passing day, our problems are mounting.

To overcome this terrible impasse and another looming crisis, our side has
gone many extra miles and made an extraordinary number of concessions.
Against the strong wishes of our supporters and indeed of all Kenyans, we
accepted PNU's insistence on a bloated 40 member Cabinet. I agreed also to
cede some of the most crucial ministries ­ such as Finance, Defense,
Internal Security and Justice and Constitutional Affairs.

-+In exchange, we obtained infrastructural ministries such as Energy,
Transport and Roads - which are instrumental in the building of rapid
economic growth - as well as Local Government and Foreign Affairs. But in
agreeing to this, I indicated that we had reached our irreducible minimum.
The response to our magnanimity from the other side has been to retract
every agreement we have finalized!

This latest crisis in portfolio balance captures the astonishing lengths PNU
is willing to go to ensure that it continues to monopolize power.

On 1st April, President Kibaki's emissary, Hon George Saitoti, gave me a
proposed list of 40 ministries and how they should be divided. The next day,
we wrote to the President's Office rejecting the proposal.

The following day, 3rd April, President Kibaki and I met for two hours and
made numerous concrete agreements on portfolio balance that I have just
mentioned, which enabled both of us to say publicly that the Cabinet would
be announced yesterday (Sunday).

On Saturday, I received from Ambassador Muthaura a letter unilaterally
indicating that the Cabinet to be announced would be formed on the basis of
an enclosed list of ministries and their allocations that we had rejected on
2nd April! The agreements we reached in our 3rd April meeting were nowhere
to be seen.

We were therefore unable to reach any agreement in the six hours of talks

Today, in response to a letter I had written to President Kibaki, we
received a reply from Ambassador Muthaura side reneging on our previous
agreements, as well as the spirit and the letter of the Accord. In PNU's
interpretation, the Constitution grants the President exclusive executive
power to run this country on his own, and that these powers supersede all
the provisions of the Accord.

The President and I promised the nation yesterday that we would finalize
arrangements for the Grand Coalition government, including the naming of the
Cabinet. However, PNU's misconception of the Accord and the principles of
democratic governance mean that there was no point in meeting today to
conclude discussions on Cabinet formation and the constitution of the

We hereby provide correspondence between our two sides which gives details
of the issues at stake and our proposals on the way forward. Let me state
once again that we are committed to the full and speedy implementation of
the National Accord to resolve the crisis gripping our country.

7 April 2008

His Excellency Mwai Kibaki, CGH, MP,

President of the Republic of Kenya,

State House,


Your Excellency,


I have been directed by the Prime Minister-Designate to reply to your letter
as follows:

1. We note PNU's expressed commitment to the implementation of National
Accord and Reconciliation Act. However, the tone and content of your letter
completely negates the spirit and the letter of the Accord.

2. As you may appreciate, this arrangement is about a Grand Coalition
Government arrived at after protracted consultations that saved this country
from total collapse.

3. To facilitate the formation of the Grand Coalition Government, the
National Accord and Reconciliation Act, 2008 and the Constitution of Kenya
(Amendment) Act, 2008 were enacted.

4. Your reference to Sections 23, 17, 18 and 111 of the Constitution, with
respect to executive authority of government, assigning of portfolios to
ministers and appointment to Secretary to the Cabinet, Permanent Secretaries
and High Commissioners is misleading.

5. A Grand Coalition Government as envisaged by the National Accord can only
be managed under the provisions of the Act. The other sections of the
Constitution did not envisage the Grand Coalition Government.

6. The Constitution as amended, in Section 4 (3) of the National Accord and
Reconciliation Act (2008) provides that "the composition of the coalition
Government shall at all times reflect the relative parliamentary strength of
the respective parties and shall at all times take into account the
principle of portfolio balance". That is the Constitution as it stands

7. Your reference to Sections 23, 17, 18 and 111 are overridden by the
proviso to Section 3 and Section 15A (5) and (6) of the Constitution which
states respectively as follows:

"Provided that the provisions of this section as to consistency with this
Constitution shall not apply in respect of an Act made pursuant to section
15A(3)", and

"Nothing contained in or done under the authority of an Act of Parliament
made pursuant to subsection (3) immediately following the commencement of
this section shall be held to be inconsistent with or in contravention of
any provisions of this Constitution".

Therefore, the references to the above sections of the Constitution and all
other provisions relating to the exercise of the executive authority,
appointments and assignments of responsibility by the President, in this
coalition arrangement, MUST be exercised in strict conformity and complete
compliance with full provisions and requirements of the Accord.

8. We look forward to the full and speedy implementation of the Accord and
will avail ourselves at the earliest opportunity to discuss portfolio
balance, structure and organization of government, the appointments of
Secretary to the Cabinet, Permanent Secretaries, Ambassadors and High
Commissioners in our joint pursuit to constitute the coalition Government as
envisaged in Section 4(3) of the National Accord and Reconciliation Act,

9. The basic framework and structure of the Government of Kenya must be in
accordance with the Constitution of Kenya (Amendment) Act, 2008 and National
Accord and Reconciliation Act (2008) which is founded on power-sharing. Any
departure from the Constitution and the Accord is an abrogation of the
supreme law of the land and any government otherwise established is illegal
and unconstitutional.

Yours truly

Dr. Mohamed Isahakia

ODM Secretariat

Join Date: Apr 2008
Posts: 31

Online Contributor

Kikuyus are so predictable. To them they think they have won. What they are
forgetting is that all along what Raila and ODM wanted was to entrench the
PM position in the constitution. The coalition ACT that Kibaki signed into
law will expire with the 10th parliament but the PM position is now in the
constitution and does not expire unless the constitution is amended again
which requires two third majority the last time I checked.

Once again while Kikuyus were focusing on the current parliament and the ministerial
positions, Tinga was focusing on what comes next. I was laughing loud when I
saw people screaming at how Raila was selling out to Kibaki when he had
those meetings with Karua, Jimmy Kibaki and even Murungi. He wanted the two
third votes to amend the constitution which could only be achieved by
including PNU people. Once that was achieved, Kibaki can go dancing himself lame if
he so wishes but when he signed it in to law and created the PM position, he
signed half his power away.

It will now take a miracle to remove that position from the constitution, and that position is only answerable to parliament. Hate him or like him, but Tinga is a good politician.

He used to say that we will get the Bomas draft bit by bit if the Kikuyu elite do not
want it to come into effect at once. He even said that if you have a ball
and you hit a wall of opponents, waite for the opportune time and then kick
the ball around them. Nobody knew what he was talking about then.

Now if elections are called, there will still be a prime minister and a
president. I cannot wait to see Kikuyus calling to change that constitution
again to remove the PM position.You talk of foolish people
who do not see beyond now. The bottom line is that powers will NEVER
EVER be concentrated in one office again in Kenya and that is a big

Those who think that they have won should talk to constitutional lawyers and
see if they will still celebrate. This was the key in Bomas draft that
Kikuyus fought tooth and nail to keep out. Now with or without Bomas, we
will still have a PM who only answers to parliament.