The political cost of getting Raila out of office

A little-cited clause in Kenya’s new Constitution all but guarantees a full term for Raila Odinga, whose position as Prime Minister came under further attack this week.

The most recent of these is the ongoing attempt by a senior official of The Party of National Unity (PNU) to have his party withdraw from the coalition with Mr Odinga’s Orange Democratic Movement with the declared aim of leaving President Kibaki fully in charge for the first time since February 2008.

However, legal experts warn that the Constitution protects President Kibaki and Mr Odinga from political coups and any attempt to remove them would only lead to the collapse of the coalition government and precipitate fresh elections.

Sub-article two of article three of the chapter on the Sovereignty of the People and Supremacy of This Constitution provides that “Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful”.

“Mr Odinga and Mr Kibaki’s positions as Prime Minister and President of the republic of Kenya are well secured in the transitional clauses of the current Constitution, which specifically state that the persons holding the positions of President and Prime Minister at the effective date shall continue holding those positions,” says former Siakago MP Justin Muturi.

The group pushing for the withdrawal cites Section 6 of the National Accord and Reconciliation Act, 2008, which gives three options for the collapse of the Grand Coalition.

“The coalition will be dissolved if the Tenth Parliament is dissolved; or if the parties agree in writing; or if one coalition partner withdraws from the coalition”.

However, the National Accord provides that any government formed under it must on the basis of power-sharing between two partners.

Section 3 of the National Accord says: “The composition of the coalition government shall at all times reflect the relative parliamentary strengths of the respective parties and shall as all times take into account the principle of portfolio balance”.

Secondly, the National Accord is anchored in the new Constitution, which requires the President to pick members of the Cabinet from outside Parliament.

The Minister for Justice, National Cohesion and Constitutional Affairs, Mr Mutula Kilonzo, says even though the collapse of the Grand Coalition will not necessarily mean fresh elections, the PNU withdrawal would put the President in a very tricky situation.

“The National Accord says that the Cabinet shall be formed on the basis of power-sharing. It would mean PNU abandoning the President and where do they expect him to get the Cabinet?” Mr Kilonzo posed.

The Law Society of Kenya (LSK) secretary Apollo Mboya called for caution, warning of a constitutional crisis should the coalition government collapse, while PNU strategist Prof Peter Kagwanja said it would be unwise for the coalition to sever links with ODM, notwithstanding the latter’s current squabbles.

“If PNU pulls out of the coalition, the national accord ceases to exist and if the national accord ends, we go to a general election,” said Mr Mboya. “However, as things stand now, we cannot go to a general election because of two reasons. One, we do not have an electoral commission to oversee the elections, and two, we do not have boundaries as envisioned in the new Constitution so the consequences of withdrawing from the coalition are a serious constitutional crisis.”

Said Prof Kagwanja: “I can say that ODM is at its weakest point today. It is where KPU was in 1966 or where NDP was in 1997. It has ceased being a national party. But in my opinion, pulling out of the coalition should be the last resort. We are better off managing a coalition than managing chaos. Let us dedicate our energies towards stabilising the country and implementing the new constitution.”

Separately, a section of MPs from ODM and PNU are also demanding that Mr Odinga be replaced as Prime Minister by suspended Higher Education Minister William Ruto on grounds that he no longer commands the support of the majority of MPs in parliament.

However, for Mr Odinga to be ousted, the ODM’s highest decision making organ must meet to relieve him of the post of the Party Leader.

Deputy Prime Minister Musalia Mudavadi says only ODM’s highest decision making organ, the National Delegates Conference, can replace Mr Odinga as the party leader and, in effect, removing him from the premiership.

“Even if somebody wanted to replace the party leader, they ought to know that the party leader is not nominated by Parliament. The party leader is picked by the party’s National Delegates Conference so it is naïve for anybody to think that they can simply meet as MPs and replace the party leader,” he stated.

Lands Minister James Orengo said: “On the question of removing Raila from the PM’s position, the Accord says that the leader of the party with a majority in the National Assembly becomes the Prime Minister.

“As things stand today, Raila is the leader of ODM and William Ruto and his group remain members of ODM unless they resign and seek fresh mandate on the tickets of other party or parties. They cannot become PNU members for the purposes of removing Raila and remain ODM members to safeguard their seats in Parliament. They cannot have their cake and eat it.”

Buoyed by the growing rebellion in ODM, other MPs have also threatened to push a no confidence motion against Mr Odinga in Parliament.

Last week, Kigumo MP Jamleck Kamau and his Ndaragwa counterpart Jeremiah Kioni announced that parties affiliated to PNU would start consultations geared towards pulling out of the Grand Coalition.

“We have made the decision as a party and we would not have said that without their (PNU affiliates) support. I know a few may say one or two things, but we will have their necessary parliamentary support to move on.”

Mr Kioni claimed that by getting approval from affiliates, the PNU arm of the coalition would be able to create a leaner government similar to the one that existed before the signing of the National Accord.

The PNU coalition brings together Vice-President Kalonzo Musyoka’s ODM-Kenya, Ford Kenya, Ford People, Kanu, Safina, Progressive People’s Party, Chama Cha Uzalendo and Mazingira, among others.

However, Immigration Minister Otieno Kajwang’ dared PNU to make real its threat and withdraw from the coalition to pave way for fresh elections.

“ODM accepts the challenge that PNU can as well walk out of the coalition. The sooner PNU leaves the better. We are tired of politics of brinkmanship,” Kajwang’ said while also challenging President Kibaki to dissolve Parliament so that the country goes to early elections.

Dr Adams Oloo, a political analyst, said the National Accord was very clear on circumstances under which the Grand Coalition government can collapse.

“It states that the Grand Coalition government can collapse if one partner withdraws in writing. If PNU was to withdraw, it will mean President Kibaki also withdraws from the coalition government, and this will result in a fresh election. PNU is reading the Accord selectively by arguing that just the way there was a government before the Accord came into force, that government will continue existing even if the Grand Coalition collapsed. They are dead wrong.”

Last weekend, MPs Julius Kones (Konoin) and Cyrus Jirongo (Lugari) called for Mr Odinga’s removal from the premiership on grounds that he had lost support of majority of MPs in Parliament.

They argued that Mr Ruto should instead be installed as the new PM as he allegedly commands the support of more MPs than Mr Odinga.

The National Accord and Reconciliation Act, which forms the basis of the coalition government, recognises the leader of the party with a majority in Parliament as the legitimate candidate for the premiership.

Currently Mr Odinga holds the post owing to ODM’s numerical supremacy over PNU in Parliament.

Dr Kones and Mr Jirongo said the Accord should be repealed to allow “for a leader with a large following of MPs to assume the position of Prime Minister.”

“Who should be the Prime Minister? Raila with 40 MPs or William Ruto with over 60 MPs?” he asked a crowd in his constituency on Saturday.

The crowd roared back, “Ruto.”

“The spirit of the Accord has changed drastically. We call for the repeal of the National Accord and Reconciliation Accord to accommodate these changing circumstances,” Kones said.

He added: “Right now a Prime Minister with a minority following in Parliament is blackmailing the government.”

However, Mr Kilonzo said it would be impossible to amend the Constitution at a time when Parliament is yet to approve the law creating the Senate and County Governments.

“In any case, we have too much work to do in the form of 49 pieces of legislation. Our focus now is implementing the constitution and anybody who feels he has too much energy should come and help me drafts the Bills instead,” he said.