Tuesday, May 12, 2009



May 11, 2009

MY COUNTERPART AT THE Permanent Committee for the Management of the Grand Coalition Affairs, Prof Kivutha Kibwana, recently made claims that cannot go unchallenged. Unlike him and other commentators, I will limit my observations to fundamental issues facing Kenyans, and not speak of personalities.

The penchant for personalising and trivialising important issues in this country is one ailment for which we should seek urgent treatment.

Prof Kibwana’s assertion that I am the architect of the “jurisprudence” seeking “redefinition of the constitution” that is causing conflict in the Grand Coalition is an attempt to draw me into a political debate I would rather not be party to, and deflect attention from the real issues.

No one is calling for the “redefinition of the Constitution”. We are, however, insisting on a correct, reasonable and fair interpretation of both the Constitution of Kenya, as it is since the entrenchment into it of the National Accord, as well as the latter’s full implementation.

WHEN ODM INSISTED THAT THE NA-tional Accord be entrenched in the Constitution, the decision was informed by President Kibaki’s trashing of the Memorandum of Understanding he signed with Mr Raila Odinga and the Liberal Democratic Party in 2002. Only a fool would fail to be informed by past betrayals.

Prof Kibwana knows that there is no such thing as the “National Accord Constitution”. Such concoctions are clever red herrings. There is the Agreement on the Principles of Partnership of the Coalition Government (the National Accord) signed by President Kibaki/PNU and Raila Odinga/ODM on February 28, 2008; the Constitution of Kenya (Amendment) Act. No. 3 of 2008; and the National Accord and Reconciliation Act No. 4 of 2008.

While Prof Kibwana states that PNU “insists that the Constitution of Kenya remains the one passed in 1963 as subsequently amended from time to time”, he must be aware that the Grand Coalition Government was not created by the 1963 Constitution.

Both President Kibaki and Prime Minister Odinga signed the Accord, witnessed by both Mr Kofi Annan and President Jakaya Kikwete of Tanzania. One hopes and expects that both the President and Mr Odinga meant everything they stated in it.

If so, one wonders why Prof Kibwana, who also happens to be the President’s adviser on constitution review, wants to pretend that the National Accord does not exist. He knows that Kenya was not a republic in 1963 and we had no President; only an executive Prime Minister.

Is he saying that as co-ordinator and supervisor of the execution of all government functions including those of ministries, the Prime Minister’s constitutional mandate, is executive just like it was in 1963?

In the preamble of the National Accord, both President Kibaki and Mr Odinga openly acknowledged that “Given the current situation, neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward and begin the healing and reconciliation process”.

When they made these commitments, the two principals knew that the 1963 Constitution existed. They chose not to refer to it. They stated that: “The composition of the coalition government will at all times take into account the principle of portfolio balance and will reflect their relative parliamentary strength”.

The entrenchment of the National Accord into the Constitution gave it authority with respect to the management of the government. The two recognised that “constant consultations and willingness to compromise” are not just necessary but essential for a coalition government to function smoothly.

There are three arms of government: The Executive, the Judiciary and the Legislature. Yet contrary to the provisions of the National Accord, President Kibaki still wields more than 80 per cent of executive power.

ALTHOUGH THE NATIONAL ACCORD clearly requires him to consult Prime Minister Odinga on all matters pertaining to the Grand Coalition Government, the President has refused to make decisions or political appointments after consultations with his co-principal.

Instead, he has intensified his control over and made all political appointments in the civil service, the military, national security intelligence, parastatals, diplomatic service, regular and administrative police, GSU, CID, public universities, provincial administration, boards and agencies. He has also cordoned off the Judiciary from his coalition partner.

Such a parochial and sectarian view of government cannot be sustained in law, logic or common sense. Neither ODM nor Mr Odinga are obligated to accept such self-serving interpretations.

Mr Miguna is the joint secretary to the Permanent Committee on the Management of Grand Coalition Affairs.