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What if Kibaki reneged on the power-sharing deal with Raila?

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The President with chief mediator Kofi Annan (left) and ODM leader Raila Odinga during a break in a session of the talks. Photo/FILE

By DONALD B. KIPKORIR

Nairobi, Kenya, 29 March 2008 - Maybe it was an Easter gift to Kenyans as the National Accord and Reconciliation Act, No 4 of 2008 and the Constitution of Kenya (Amendment) Act, 2008, were given assent by the President and became effective on March 20.

The Acts demand that there be a Prime Minister and that the “… coalition Government reflect … parliamentary strength of the respective parties …” and that there be “…portfolio balance.”

As the new law states, the Prime Minister is automatically the parliamentary leader of the largest political party.

Besides, the coalition government is based on the pro rata parliamentary strength of each political party forming the coalition. The coalition comprises ODM, PNU, ODM Kenya and Kanu, their shares in the coalition in the same descending order and including portfolio balance. ODM is therefore the senior partner.

The new constitutional provisions also give the power to appointing the Cabinet to both the President and the Prime Minister in equal measure, although it is the president to announce the line-up.

Personal synergy

This requirement thus demands of the President and the Prime Minister personal synergy, utmost good faith and transparency.

The above enactments were imperative to enable Kenya to avoid spiralling into chaos and joining such failed states as Cote d’Ivoire, Somalia and D.R. Congo. But Kenyans may have celebrated too soon.

It is nine days since the coalition law became operational and constitutionalised and yet there is no coalition government in place. There is the real danger of nihilists in the Government wanting to derail the implementation.

But what if the President reneges on the deal and refuses to consult the Prime Minister-designate over the Cabinet composition? What options do ODM and the country have?

The fatal defect of the new law is its failure to set an implementation time-table. Whenever parties to a dispute enter into a negotiated settlement, there is always a time-line to give it efficacy.

This loophole was either by design or through sheer incompetence on the part of drafters of the two Bills or the MPs during the debate. President Kibaki can therefore decide to impose his own time-line, and legally, we can only watch and wait.

However, leadership is not a legal issue only, and herein lie Kenya’s options. When a president by any other title comes to national leadership by any means other than the force of arms, there is a social contract between him and the people.

In a nation-state, the citizens surrender their collective leadership to a group or individual and, in turn, this coterie of leaders maintains law and order. This contract is based on principles of morality and reciprocity.

A social contract

If a social contract is based on morality and reciprocity, the President enjoys the support of only the people by maintaining minimum moral imperatives, among them his obedience to the law and respect of the rule of law and order.

The new law stipulates that there be a coalition government in which real power shared commensurate to parliamentary party strength. President Kibaki therefore has no moral choice but to give effect to this law.

Kenya is not a strong country, as our leaders would have us believe. We wallow at the bottom or near the bottom in almost every world ranking.

It is not a coincidence that we are ranked poorly, nor is it malevolent interference by foreigners. We are a poor, weak and backward country.

Should the President renege on the power-sharing deal, our situation will only worsen and we shall be on our way to the failed states club. In states like Zimbabwe there is no social contract between the leaders and the people, but rather a duress one.

The country is holding its presidential election today, and all the disciplined forces have made it clear that they expect Comrade Bob to win, arguing that they would not pledge allegiance to any other leader.

Zimbabwe league

We cannot allow Kenya to join the Zimbabwe league even though President Robert Mugabe has the temerity to say that he would not allow Zimbabwe to be like Kenya, referring to the post-election mayhem.

The basic elements of a failed nation-state are present in Kenya, and they include tribal conflicts, broken physical infrastructure, endemic and pervasive corruption and bad governance. The power-sharing deal was aimed at resolving these ailments, that the presidential election exposed.

National leadership, like any other public service, is not about self, but trusteeship from the governed. What is expected of our leaders is showing by example how to govern, administer, manage and make decisions.

Leadership demands moral rectitude, and how a leader respects the law and its coercive powers, represented in Cabinet positions, the Judiciary and police is the yardstick a leader will be measured on. And does President Kibaki care?

The law says that there be real power sharing in the Government and in portfolio balance. These are words that need no prevarication by either the President or Mr Odinga, or their surrogates.

But this is no time to be blackmailed by surrogates, nor can the two principals hide behind them. True leaders are known during a crisis when sober thinking is needed.

King David was such a leader; he never hesitated in decision-making even if it meant slaying the giant, Goliath. But Samson was a coward and indecisive when Israelis wanted freedom from Philistines. For his leadership, David was given an eternal dynasty, and for his failure, Samson went down in the temple ruins with no bloodline or legacy.

The Constitution as it is at present offers the President both criminal and civil immunity while in office.

Physical infirmity

Worse, he may be removed by only reason of mental or physical infirmity that impairs his execution of the presidential functions, and the process is long, tedious and hazardous.

If President Kibaki refuses to honour the power-sharing deal, this amounts to neither mental nor physical infirmity and so no ground for impeachment.

The framers of our impeachment clauses must have been students of command leadership if not former communists.

Other than his own moral persuasion, popular agitation and international re-engagement, Parliament maybe our last place of refuge and salvation. Parliamentary practice in especially the Commonwealth allows the House to pass a vote of no confidence in the Government.

ODM, being the parliamentary majority, ought to and must use this sword of Damocles to ensure the power deal is implemented at the peril of a no-confidence vote. For I am yet to come across an African president, or even MP, who wants to lose power.

Coalition government

The more we delay in having the coalition government, the more we risk losing ground of moving forward. We saw innocent Kenyans killed by police and militias during the post-election violence, houses burnt and people made refugees in their own country. It seems as though some people still do not want healing to begin and the nation to get back onto its feet.

Kenya must not allow an individual, a coterie of individuals, a political party or even a whole section of the country to ransom the rest.

Each era demands leaders to emerge above self to lead a country in need. Whenever states faced perils from within or out, legendary leaders such as Alexander the Great of ancient Greece, Abraham Lincoln of early America and Nelson Mandela of South Africa emerged.

But in such times, most modern countries take a wrong turn as no leader seizes the moment, as has happened across Africa. Mobutu Sese Seko of DRC and Zimbabwe’s Mugabe will always rank high on this list of shame.

Will President Kibaki and Mr Odinga stand up and hold the country together or will they rather be remembered in ignominy for dereliction of duty?

Will Parliament play its role to force the implementation on the threat of the collapse of Government or will the MPs be selling their souls for 30 pieces of liver?

Kenya is waiting and getting impatient.

Source: Daily Nation



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