Kalonzo should forget 2013 MoU for Nasa to stand

It is now clear that opposition unity talks are in some jeopardy after Wiper leader Kalonzo Musyoka issued a seven-day ultimatum that he should be made the National Super Alliance (Nasa) candidate or he will walk out of the talks.

Musyoka insisted, in a communication through National Assembly Minority Leader Francis Nyenze, that in 2013 he signed a Memorandum of Understanding (MoU) with Orange Democratic Movement leader Oginga Odinga in terms of which the two shared a presidential ticket on an understanding that Odinga would support Musyoka in the 2017 elections.

Although the agreement between the two has never been made available for independent scrutiny, its existence has also not been denied.

One problem that Musyoka’s claim must overcome is the fact that while he claims an agreement with Odinga, he is now demanding that the agreement should also bind third parties with whom he claims no agreement.

HONOURING AGREEMENT

The Nasa negotiations involve not only Musyoka and Odinga – the persons said to have entered into the agreement in question – but also Amani National Congress leader Musalia Mudavadi and Ford Kenya leader Moses Wetang’ula.

Also, Musyoka has already negotiated pre-election agreements with a number of Ukambani parties including Chama cha Uzalendo and Muungano Party.

Although these parties were not part of the alleged agreement with ODM, they have now been enlisted in demanding that the agreement be honoured.

A consequence of honouring the 2013 agreement would be that the possibility of a new agreement under Nasa would be nullified. A logical assumption in agreeing to work on a new pact for 2017 is that the parties to the 2013 agreement have already acknowledged that the previous agreement will not work in the forthcoming elections.

Although, at face value, the deadlock is between Musyoka and Odinga, there are other interests at play and which have complicated the possibility of reaching a settlement.

Even before the latest setback, the opposition parties have been involved in an unseemly jostling, characterised by internal poaching from one another.

As part of this, former Lagdera MP Farah Maalim, an ODM stalwart, defected to Wiper where he was made deputy party leader, while Kwale gubernatorial aspirant Chirau Ali Mwakwere, who had crossed over from Jubilee to ODM, later defected to Wiper.

POLITICAL INFLUENCE

The fight for political influence at these other levels has complicated the possibility of reaching agreement on a presidential candidate for Nasa. Mombasa Senator Hassan Omar, who is preparing to oppose Mr Hassan Joho for the seat of governor, has been involved in a bitter war with the ODM deputy leader.

Omar is a rising star in Wiper, whose leader he seems to have some sway with. On his part, other than being party deputy leader for ODM, Joho is the most important player in the party after Odinga, and has set out to consolidate opposition support in the coast region. The rivalry between the two is an important factor undermining the possibility of reaching consensus on an opposition leader.

Another complicating factor is western Kenya where two of the opposition leaders, Mudavadi and Wetang’ula, derive their greatest support from.

At the same time, this also happens to be a stronghold for ODM, which obtained the largest number of votes from the area in 2013, and now controls the largest number of elected seats. If Odinga ends up as the Nasa candidate, this is likely to also increase the chances that his party will do well in western Kenya, a development that would further marginalise both ANC and Ford Kenya.

While ANC and Ford Kenya have been negotiating for safe seats in this region, in exchange for their support for Odinga’s candidacy under Nasa, Odinga would not be the only actor in making such a decision.

All the parties involved have members and networks which have been campaigning for elective office on the basis that their respective candidates would compete at the polls. While Odinga might be pushed into a boardroom deal to give up seats, such a deal would be difficult to sell among members, especially so late in the day.

It is clear that three considerations would need to govern the ongoing opposition negotiations, if these are to succeed. First, this is a new negotiation that has nothing to do with 2013.

BINDING OBLIGATIONS

No doubt Musyoka will take offence with this approach but it is the truth. Contract law has a concept called “frustration of purpose”, where binding contractual obligations are voided by developments that are outside the control of the parties and which serve to make it impossible for them to hold one another to the original terms of the contract.

If Musyoka and Odinga signed an MoU, its purpose was to ensure that Odinga ascends to the office of President, and govern how he would exit the office, such exit being for the benefit of Musyoka. Both claim that Cord won in 2013 but its victory was stolen by Jubilee. In law, a frustration of purpose occurred as a result of the alleged theft, and released both parties from their obligation under the MoU.

Also, their subsequent conduct has shown that Musyoka and Odinga no longer regard the MoU as binding. They have been involved in negotiations that disavow whatever MoU they might have signed.

Secondly, the Nasa leaders should realise that if the negotiations collapse, the greatest losers will be the handlers who are now said to be responsible for the deadlock. Not only will the Nasa leaders lose power, but their handlers, some of them young, will go into political oblivion.

Thirdly, it should be clear that, within Nasa, nobody has anything to give another in exchange for political support. Rather, the purpose of co-operation is to avoid the certainty of defeat by Jubilee and the consequences this would have for the country and the opposition. A higher calling must guide the Nasa negotiations, otherwise the country should just stick with Jubilee.

Bickering over the spoils of office shows that Nasa has not grasped the grave danger that the country is in, and would not make a difference if they got power.

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