Tuesday, February 15, 2011



By Antony Mugodo

It would be a most dangerous precedent if the provisions of the new constitution were to be sacrificed at the altar of convenience by dissident ODM members in the legal committee of parliament. It is one thing to try to get even with your party boss for some invisible atrocities and it’s another thing to commit a civil wrong when placed in a position to advance a civil duty to society. Irreverence for the law has long been a feature of the country’s political class. It has never been about the content of the law.

The provision in the constitution is as simple as it is basic. The President must consult the prime Minister. Consultation may not mean concurrence but certainly implies it. I have long derided the drafters of the National Accord and Reconciliation Act for drafting a bogus piece of legislation while in fact the 1963 constitution offered the best precedent from which appropriate provisions would have been reaped and heaped in the Accord to provide the best basis for a power sharing arrangement.

That constitution in which Jomo Kenyatta was prime Minster, for those not in the know, provided that the prime Minster be the nominating authority and the governor general (Representative head of State, in our case the president) the appointing authority. There was clear allocation of mandate and responsibility for each of those offices and there was not open, a room for conflict until of course the great atrocity was committed against the document by the Old man. The drafters of the new constitution sought to address the inherent inadequacies in the national accord and its inconsistencies with the old constitution by inserting the clause of consultation in the new constitution in an attempt to cement the union and give it the proper legal credence desired and deserved albeit leaving a lot of room for speculation which is a flaw in any constitution making process.

That being that, in the present case the facts are simple, the President alleges consultations took place and the premier denies. Surely a lack of affirmation by the party to be consulted is incontrovertible evidence that consultations didn’t take place. There is no room for seeking extrinsic evidence to corroborate any of the parties’ case. I am astounded the committees needed additional time to consider the merits and demerits of a simple case! Probably for political considerations, they thought it wise to indulge in being in a state of action as opposed to labor.

Gents and my favored ladies please note that defending the provisions of the constitution does not necessarily require a party affiliation; it is a patriotic duty. This is not about Old Mwai or the revered RAO, they are merely office holders. The constitution must be respected. The President must be reminded that his election was a sham which necessitated the enactment of the Accord to set up the government and the insertions of the relevant provisions in the new constitution. Surely he must not be allowed to add insult to injury by abusing the provisions in the constitution that make his presidency tolerable.