ODM turns the heat on Muthaura as PNU stays put

The Orange Democratic Movement will seek a parliamentary resolution on whether Mr Francis Muthaura is constitutionally empowered to perform duties as the Head of Public Service.

Already the party has drawn a motion to be presented to the clerk of the National Assembly this week ahead of Parliament’s reopening next week.

The party argues that Mr Muthaura is arrogating himself the duty, which is constitutionally supposed to be executed by Prime Minister Raila Odinga.

ODM wants Parliament to resolve that Mr Muthaura had undermined the House which passed a law to vest the supervisory and coordination responsibilities of Government functions on the Prime Minister.

The Sunday Nation learnt that the party wants to cite a handbook prepared by the Office of the President which outlines responsibilities of ministers and permanent secretaries after the coalition Government was formed.

Titled “The Presidency and Cabinet Affairs, Handbook on Governing Responsibility in Kenya” dated July 2008, it designates Mr Muthaura’s responsibilities as “organisation and coordination of Government business”.

It also assigns him other duties as secretary to the Cabinet, organisation of the Presidency and Cabinet affairs, communication of executive directives, facilitation of establishment and abolition of public offices, facilitation of establishment of presidential commissions of inquiry and their operation among others.

ODM wants to cite the responsibilities of the PS as detailed in the handbook vis a vis the National Accord and Reconciliation Act, which states that the Prime Minister “shall have authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya including those of ministries” to illustrate that Mr Muthaura was undermining Parliament.

On Saturday, Immigration minister Otieno Kajwang’ said Mr Muthaura had no such powers “he is arrogating himself. If that is his job then he should work under the Prime Minister because the Constitution says that is the office that supervises and coordinates Government activities.”

Mr Kajwang’ said although Mr Muthaura used to circulate and ensure Cabinet decisions were implemented previously, the functions were transferred to the PM’s office when the coalition was formed.

He asked what the PM would be doing if Mr Muthaura does what the Constitution says the PM should do.

Kanu days

Lands minister James Orengo argued that there was no position in the Constitution known as the Head of Public Service. Mr Orengo said the position does not exist and that it was an administrative arrangement during the Kanu days.

“I want to be told without any fear of contradiction where we derive the basis for that office . . . they are pretending to exercise powers not vested on them,” he said. His views are shared by lawyers Gitobu Imanyara who is also the Central Imenti MP and former Kabete MP Paul Muite.

Government functions

Quoting the National Accord and Reconciliation Act, Mr Orengo argued that the power to supervise and coordinate Government functions was vested on the PM following the entrenchment of the Act in the Constitution.

However, those backing the existence of Mr Muthaura’s office like Nairobi Metropolitan minister Mutula Kilonzo cite Chapter II, Part 2, Section 22 (2) of the Constitution which says there shall be a permanent secretary in the Office of the President.

Mr Kilonzo and Foreign Affairs minister Moses Wetang’ula argue that since the President was both Head of State and Government, then the PS in his office automatically runs the Government on his behalf.

They further quote Chapter II Part 33, Section 23 (1) which states: “The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him directly or through officers subordinate to him.”

They also say the PS exercises powers delegated to him by the President as provided for in the Constitution.

They further back their argument citing Chapter II of the Constitution, Part 2, section 22 (3) with Mr Kilonzo arguing that although ministers have the responsibility for a department of Government where they shall exercise general direction and control, every such department shall be under the supervision of a permanent secretary.

Mr Wetang’ula argued that since the President chairs the Cabinet, it would be foolhardy to transfer the duties performed by his PS to another office.

“Powers are not gifts to be handed out. They are crafted in the Constitution which clearly says who should do what,” Mr Wetang’ula added.

ODM demands

Mr Kilonzo said the creation of the PM’s office did not take away the powers of the President. He described the ODM demands that the office of the Head of Public Service be abolished and its functions performed by the PS in the PM’s office as attempting a “coup”.

“If ODM wants powers of the President, then let them bring a motion to amend the Constitution. There are no shortcuts,” the Mbooni MP added.

However, those who think Mr Muthaura was exercising the powers illegally argue that the section cited does not say the PS in the office of the President shall head the Public Service.

Mr Muite counters the argument saying Chapter II, Part 3; Section 23 (2) of the Constitution says: “Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the President.”

The former Kabete MP explained that when Parliament created the office of the Prime Minister, it conferred on it the authority to supervise and coordinate Government functions.

He says the amendment to the Constitution was intended to share executive authority between the President and the PM. The premier, he added, was to be in charge of running the affairs of the civil service.

On the other hand, Mr Imanyara said Mr Muthaura’s office should be under the PM in the Ministry of State for Public Service to give meaning to the National Accord.

“The Head of Public Service is a department in the PM’s office. Those reading it to mean it is under the Office of the President are conveniently ignoring that the PM’s office exists,” Mr Imanyara added.

Although ODM members said Mr Muthaura was undermining Mr Odinga, party members rejected a move by some MPs that they quit the coalition and demand fresh negotiations in the coalition during the Parliamentary Group-cum-National Executive Committee meeting on Wednesday.

Stay put

Instead MPs said they should stay put in the coalition as equal partners under the Constitution and fight from within for portfolio balance. Some of those who said ODM should stay put include Fred Gumo, Oburu Odinga, Jakoyo Midiwo, Musa Sirma and Franklin Bett.

Cabinet ministers were told to take charge of their ministries and reject any attempts by Mr Muthaura to direct their affairs henceforth because he had no such powers. The ODM PG-cum-NEC resolved that the office of Mr Muthaura should be abolished and its functions moved to the PS in the Prime Minister’s office.

Government spokesman

ODM also wants the duties of the Leader of Government Business in Parliament, now under Vice President Kalonzo Musyoka, be performed by the Prime Minister in line with his duties as coordinator and supervisor of Government policies.

The office of the Government spokesman, the party said, should also be transferred to the PM’s docket.

MPs, led by Mr Sirma, asked ministers to exert their authority by hiring and firing staff. Public Service minister Dalmas Otieno was asked to take charge of his docket whenever ministers wanted him to act.

Some MPs also asked Mr Odinga to nominate ministers to the Roads and Home Affairs dockets, which was left vacant following the deaths of Mr Kipkalya Kones and Ms Lorna Laboso if President Kibaki was delaying the appointments.

A section of MPs complained that decisions regarding appointments to the Government were done without consultation and that Mr Odinga had been reduced to doing dirty work for the Government like announcing sackings in institutions and evictions in the Mau Forest.