Can Mr Raila Odinga lead his Orange Democratic Movement out of the coalition government? And what happens if he does?
These are some of the questions being asked amid the acrimonious power play between President Kibaki and the Prime Minister.
ODM parliamentary group secretary Ababu Namwamba said his party was walking “a tight rope” and blamed the drafters of the National Accord and Reconciliation Act for not providing an express conflict resolution mechanism.
According to the Accord, the coalition shall stand dissolved if the 10th Parliament is dissolved, coalition parties agree in writing to go their separate ways, or one partner withdraws.
But Mr Namwamba said if the Orange wing decided to pull out of the coalition, President Kibaki’s Party of National Unity “would continue ruling as if nothing happened”.
Contrary to public perception, said Mr Namwamba, the Accord does not force the country to hold elections if one of the parties walks out.
“The ODM’s choices are quite limited. The dissatisfied party can only appeal to chief mediator Kofi Annan or call mass action and I don’t think Kenyans are ready for that,” the lawyer told the Nation yesterday.
Mr Namwamba said the drafters may have acted in haste to reach a political deal and restore peace following the violence that broke out after the 2007 polls.
The Accord seems to favour one of the parties, raising questions on whether ODM had negotiated a “watertight deal”, said the Budalang’i MP.
Constitutional scholar Githu Muigai agreed that if ODM decided to leave, the coalition would collapse but not the government.
“Constitutionally, a government would be in place conceivably until the next election or a new constitution is enacted,” he said.
This means that if Mr Odinga walked out, President Kibaki would re-constitute government and finish his second term. According to Prof Muigai, the challenge will not be constitutional but political.
“There would be issues on whether it could resist a no-confidence vote and whether it would be effective, viable and legitimate,” he said.
Formed after the 2008 political crisis, the coalition was meant to be a partnership with commitment on both sides to govern together and push reforms.
But disturbing political events touching on the handling of graft allegations in the Education and Agriculture ministries strained the relationship between the partners who seem to be working together but at cross purposes.
Attorney-General Amos Wako has cautioned that the power play between the two principals could yield what he termed “disastrous results” for the country.
“If unchecked it could lead to the breakdown of the coalition government, developing into a political and constitutional crisis,” he said.
The government’s chief legal adviser also warned that the battle could adversely affect security and precipitate a premature General Election.
Some in PNU have claimed that Mr Odinga plans to quit the coalition government immediately he returns from Japan, where he is on official duty.
But it is not that easy; such a decision must be a resolution of ODM’s highest decision-making organ, and it must be in writing.
Given the division in ODM in which a cabal of MPs allied to Agriculture minister William Ruto are opposed to Mr Odinga, it is unlikely that the Prime Minister can achieve consensus for the party to pull out.
But Mr Namwamba thinks such a move is possible.
“It would only require a simple majority of the National Delegates Congress,” he said.
And even if Mr Odinga were to resign or be thrown out by Parliament through a no confidence vote, his party, if it continues to retain majority in the House, will be required to nominate a replacement.
The accord says that the PM can be impeached if the National Assembly passes a resolution which is supported by a majority of all the members, excluding the ex-officio members.