MPs hand President another leadership test

All eyes are on President Kibaki who bears the singular, if unenviable, responsibility of having to make the decision to approve or reject controversial amendments to laws on elections and political parties that have been widely described as self-serving changes.

The amendments have already angered the country and divided the Cabinet. And unlike in the past, some Cabinet ministers from the President’s wing of the coalition like Amos Kimunya have joined calls for him to reject the amendments.

Powerful constitutional commissions, the Law Society of Kenya, a section of Cabinet ministers and wananchi have also asked President Kibaki not to sign the offensive Bills into law saying they represent a breach of the Constitution.

If the changes are signed into law, they would see MPs abandon their parties without losing their seats and losers in the presidential, gubernatorial and parliamentary elections eligible for nomination to county and parliamentary positions.

The decision will be a delicate balancing act for President Kibaki. If he approves the changes, the President will not only set himself on a collision course with sections of his Cabinet and the constitutional teams that have threatened to seek court action but also with wananchi who have reacted with anger to the amendments.

Cabinet ministers James Orengo, Dalmas Otieno, Mr Kimunya and presidential hopeful Peter Kenneth have appealed to the President to reject the proposals even as Attorney-General Githu Muigai has encouraged those opposed to the changes to seek judicial intervention.

In a sense, the Miscellaneous Amendment Bill that contains the changes is an assembly of various competing interests.

Whereas some politicians would be happy with the enactment of certain changes, others are uncomfortable with some of the amendments.

Notably, most of the MPs who spport the party hopping amendment are from President’s wing of the coalition.

The complication is that whereas some Kenyans favour the requirement for higher academic qualifications for Members of Parliament and Senate, most of them are opposed to the changes allowing MPs to abandon their parties without losing their seats.

All the proposed changes are in the same Bill. But a number of MPs, especially those opposed to the degree threshold, would pray that the President does not sign it into law; but they still hope he legalises party hopping.

“President Kibaki must summon his wisdom to guide him on the decision because it may end up annoying many Kenyans and taint his legacy,” said Mr Ken Wafula, the head of the National Council of NGOs.

“The choices are clear for him. He would have to choose between protection of the Constitution, which he swore to uphold, and mutilation.

“He would have to choose between integrity in politics or encourage indiscipline in political parties. We will use all means possible to resist attempts to deface the letter and kill the spirit of the Constitution.”

There is also the small matter of judicial intervention. As in the 2011 case in which the High Court rejected his nomination of top judicial officials, President Kibaki will be left with egg on his face if he signs the amendments into law only to have the Judiciary declare them unconstitutional.

Mr Charles Nyachae, the chairman of the Constitutional Implementation Commission, has declared that he will go to court if the President accepts the controversial amendments with far-reaching implications for the coming General Election.

“If there is a time for Kenyans to use their legitimate methods and authority to defend their Constitution then that time is now. I encourage them to seek judicial intervention,” he said.

There are already indications that the LSK might move to court seeking a declaration that would nullify the changes. This would effectively open another battlefront between the Legislature and Judiciary.