The National Accord and Reconciliation Bill

[kamalet]

I have been able to see the Bill in the form it was released after 28th February.

This bill in its present format will be a constitutional headache to get through and only raises the possibility of it being rendered illegal by the high court as it is in various places inconsistent with the constitution.

Section 3(1) There shall be a Prime Minister of the Government of Kenya and two deputy prime ministers who shall be appointed by the President in accordance with this section

This section would need to be entrenched in the constitution since if these offices are not named in the constitution, then they can be read as subordinate to the offices established in the constitution, namely the President, the Vice President and cabinet ministers. Ideally then, unless the constitution is amended first before bringing this Act to the House, then the time lapse is enough for a smart alec to render this Section illegal.

The Act has constant reference to "the Coalition". Can this be construed to mean ODM? PNU is already in a written and agreed Coalition arrangement with ODM-K. I think that the PNU can and would be entitled to enlist the sipport of ODM-K and other parties to form that coalition in competition with ODM. If you read section 2 it becomes clear what this is all about:

The person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of:

a) The political party that has the largest number of members in the National assembly or

b) a coalition of parties in the event that the leader of the political party that has the largest number of members of the National Assembly does not command the majority in the National Assemblly.

This means that ODM MUST enter into a coalition with another party to get the requisite majority of 112 seats in the house for the party to provide a Prime Minister. (Please read my earlier thread on how Raila can be stopped).

Duties of the Prime Minister:

a) He shall have authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya including those of ministries.

b) May assign duties to the deputy prime ministers including deputising for him

c) Shall perform such other duties as may be assigned to him by the President or under any written law.

Nothing much really to this apart from the ambiguity of what happens to the role of the head of Public service who previously undertook the duties. If you read section C, then this seems to suggest a case of working together rather than sharing power if the duties of the PM are to be assigned by the President.

Section 4 (2) is even trickier:

In the formation of the coalition government, the persons appointed as ministers and assistant ministers from the political parties that are partners in the coalition other than the President's party shall be nominated by the parliamentary leader of the party in the coalition.

I suppose this takes care of Kalonzo, Uhuru and Kombo with their respective parties in coalition with PNU and the new entrant in the name of ODM.

Section 4(3) throws a spanner in the works!
The composition of the coalition government shall at all times reflect the relative parliamentary strengths of the respective parties and shall at all times take into account the principle of portfolio balance.

This means that Raila's ODM can by right demand to have the highest representation in the cabinet on account of this section as they are the parties with the largest number of member of the national assembly!

Section 4 (4) The office of the prime minister and deputy prime minister shall become vacant only if:

(c) the coalition is dissolved.

Section 6. The coalition shall stand dissolved if:

(c) one coalition partner withdraws from the coalition by a resolution of the highest decision making organ of the party in writing.

If you read my earlier view of who are the coalition partners to this Act, then rightfully, if Kalonzo's ODM-K was to leave the coalition (since they are in coalition and are not members of the President's party PNU), this could kill and dissolve the coalition! What about Uhuru's Kanu?

Section 8. This Act shall cease to applu upon dissolution of the tenth parliament, if the coalition is dissolved, or a new constitution is enacted whichever is earlier.

We all read about a referendum next year for a new constitution. It is unlikely that the new constitution will lead to a general election, so if the referendum endorses the new constitution, this will be the end of this arrangement.

Personal Views

I cannot believe that this Act was the result of the negotiations between the 8 people working with Koffi Annan. In that group were 4 prominent lawyers who would not have allowed for such an Act. My view is that the legality of what Kofi and his team were pushing is what led to suspension of the talks. Kofi and his team then drew up the agreement which Raila and Kibaki signed for the sake of Kenya.

It is an Act riddled with loopholes and illegal sections that other lawyers - including the speaker- will not entertain in the house. It also does not surprise me that some PNU hardliners are so quick to endorse the agreement upon which the Act is based. Question is - are they happy to hoodwink the nation that they support his knowing fully well that it is a bad Act? Will ODM seriuosly walk into this Act knowing it is flawed or will they reject it?

Today, James Orengo explained the difficulties they have as they cannot change the agreement of the principals (and I am hoping this was the reason for the meeting yesterday between the two) and the fact that it is not an Act that can be entrenched into the constitution in its present form.

Someone out there is playing with the minds of Kenyans!

[adongo23456]

Kamale

Didn't you bring this argument already and we told you it is has no legs? Why are you bringing it up again? You are saying nothing new.

You contend that the proposed Act is unconstitutional. Of course it is. That is why they are going to amend the constitution to incorporate the office of the PM as a part of the executive branch of government. The act itself is a constitutional amendment act which can only be passed in parliament by a two thirds majority. The laws of Kenya provide that the constitution can be amended in parliament as long as the amendment is supported by a two thirds majority of all members. That is exactly what the M.P's intend to do.

If the provisions of the act were already recognized in the constitution they would not need to amend the constitution. So it is redundant to say the Act is unconstitutional if such an act is intended for the amendment of the constitution.

The quibbling about which party has the majority in parliament and would therefore be given the PM's post is already mute. For all practical purposes Raila Odinga has already been appointed the PM. Everything else is just paper work. Obviously those folks know something we don't. So I wouldn't waste time with that. I am stunned by the efficiency of this transition. Finally Kenyans know where Harambee House is. Mpatanishi House some call it, but that is another story.

Then of course I can sense the attempt to insinuate that after all the duties of the PM are assigned by the President and therefore they will "work together rather share power". There is a big difference between "working together" and "sharing power" in this case. First, the primary duties of the PM, namely supervising and coordinating the the activities of the cabinet are going to be spelled in the constitution. Those duties will not be assigned by the president. That is where the executive authority of the PM actually lies. However the president can assign any other duties including for example things like setting up a committee for national reconstruction, being in charge of the country when the president is away etc.

Now to me the most significant aspect of the office is the supervisory and accountability role of the PM's office over the cabinet. We all know this does not mean pestering or unduly interfering with work of cabinet minsiters, but it means that for the first time in our country a principal executive authoriy of state and governance will be held accountable for all the actions and inactions of each and every ministry of government in Kenya's National Assembly.

It means if we want to know what is going on with Anglo Leasings of the past or those of the future, we do not have to ask Kimunya or whoever else is the minister of finance. We will ask the PM who is obliged to provide answers to such questions in the legislature and be held fully accountable for those actions or inactions.

It means if I want to know what is going on with cops shooting innocent Kenyans, I don't have to ask the minister of internal affairs. I will direct such concerns to the PM.

In other words every minister is going to make sure that the PM is very conversant with what they are doing, is probably in agreement with what they are doing and is going to be able to defend them in the floor of the national assembly.

The coordinating function is also very key. The PM is going to establish inter/ministerial initiatives to promote efficiency and produce results. The PM can also initiate government projects to be run by ministries etc.

What all these tells me is that the PM's office is going to provide that check and balance we have always needed to ensure that the ministers and their ministries do not become an island unto themselves and do whatever they want as long as they have the support of the president.

As far as I know this deal is between the ODM and the PNU and whatever other deals the PNU has on the sides with groups like ODK K, Kanu, Ford K etc has nothing to do with the deal. In fact Kalonzo might be better off joining the official opposition as was suggested by the LSK.

The lack of opposition in bunge is going to minimize some of the gains of this deal. For example if there is an embarassing issue like corruption etc in a particular ministry it is very possible that since all M.P's belong to the government, they could be prevailed upon not to raise the question. Hopefully this whole situation is temporary. I also hope that we are going to have some principled and independent M.P's who will ask the tough questions.

Finally, your idea that it is the legality of what Annan and co were doing that led to the suspension of the talks is bizarre to say the least. We all know the talks were suspended when your good friend went ballistics and started insulting the Chair talking about Darfur and Iraq etc. Someone took their bar room tactics to the the talks and Annan wasn't going to put up with that.

The simple fact is that M.P's are going to amend the constitution to accommodate the provisions of the act. I don't think all the good lawyers involved in this exercise are not aware that there are all sorts of vultures out there waiting to start filing court cases challenging the legality of the act.

adongo

[adongo23456]

This is what the standard says about the new bill.

www.eastandard.net/news/?id=1143982885&cid=4

New dawn as MPs convene

Published on March 6, 2008, 12:00 am


By Standard Team

Today, Kenya stands on the threshold of a new dawn. An unprecedented chapter in the country’s history unfolds this afternoon when President Kibaki officially opens a unique hybrid Parliament to usher in the first session of a House united in a power-sharing coalition.

The Tenth Parliament will be an uncharted, epoch-making legislative body with structures and phases never seen before since Independence 45 years ago.

The new structure of Parliament has been occasioned by the historic Grand Coalition entered into by President Kibaki and ODM leader Mr Raila Odinga last week after international mediators brokered a political settlement out of a presidential vote impasse that plunged the country into sectarian bloodletting.

The structure of the House, that is to emerge after the right legislation is passed, will not be witnessed today. However, President Kibaki, in his opening address, is set to roll out a process that will see the creation of the post of Prime Minister and two deputies.

President Kibaki’s speech is expected to contain policy statements that will shape the course of the coalition government.

Analysts say the policy statements are largely expected to be in tandem with two documents — the Agreement on the Principles of Coalition Government and the National Accord and Reconciliation Act 2008, which the two leaders signed last week.

If signed into law, the President will remain the Commander-in-Chief of the Armed Forces and Head of State, while the Prime Minister would be charged with coordinating the affairs of Government including supervising ministries.

The only other time Kenya has had a Prime Minister was between 1963 and 1964 when Jomo Kenyatta held the position but then there was no President in the same Parliament.

Kenyatta scrapped the position in 1964 when Kenya became a Republic, paving the way for an imperial presidency with powers to head Government and State all rolled in one.

Once legislation is enacted in about two weeks’ time, the President, the Prime minister, two deputy prime ministers and a Vice-President will sit in the House together, and according to the current arrangement, without an Opposition.

Indeed, in the scenario that will unfold, according to German Ambassador Mr Walter Lindner whose country has a similar coalition, the backbenchers will act as the Opposition.

In preparation for the new arrangement, Speaker Kenneth Marende and Government Chief Whip and Juja MP Mr George Thuo, both of whom are new in their roles, were taken through a full dress rehearsal by Senior Deputy Clerk Mr PG Gichohi who guided them on the procedure to follow this afternoon.

A brass band that will perform the guard of honour for President Kibaki rehearsed at Parliament.

The VIP reception at Parliament has been reserved for both Kibaki and Raila, who will arrive in official motorcades led by outriders.

But while Raila is scheduled to proceed right into the Chambers, Kibaki will stop to inspect a guard of honour.

Earlier before the opening, the two coalition partners — PNU and ODM — will hold a joint parliamentary group (PG) meeting, overseen by President Kibaki and Raila, to prepare them to move in as one team in effecting the necessary legislation in the coming days.

The PG, which would serve as a bonding session, is necessary given the acrimony and bitter exchanges that pitted the two sides during the swearing-in ceremony and election of the Speaker.

However, when Parliament begins its second session this afternoon, no changes in the traditional sitting arrangement will be observed since no law is in place yet.

Senior deputy Clerk of the House Gichohi told The Standard on phone that MPs will enjoy free sitting today as had been ruled by the Speaker during the swearing-in session.

Except for the Vice-President and Leader of Government Business Mr Kalonzo Musyoka, his deputy Ms Martha Karua, Deputy Speaker Mr Farah Maalim and Cabinet ministers already appointed, all the other members will be free to sit anywhere in the House.

On a normal day when the House is in session, the Government side occupies the seats on the right hand side of the Speaker, while Opposition takes those on the left hand side.

President Kibaki will occupy the Speaker’s chair from where he will perform the State opening of Parliament by delivering the keynote address.

On any other day, the President sits on the chair of State, next to the
Speaker’s.

The President will be invited to perform the function by the new Speaker, Marende, who will make his inaugural address while in full official regalia.

There will be no other business after the speech by the President while members will retreat to Parliament’s garden for refreshments at the invitation of the Speaker as has been the tradition.

Raila, whose responsibilities will include supervising and co-ordinating the Cabinet, will have to move over to the government benches to a designated position, once the Bill sails through Parliament.

It was still unclear, from the draft Act, which is not detailed, if the Prime Minister will take over the Leader of Government Business slot from the Vice-President.

Because the PM has the official role of the Government inspector, it is necessary for him to be the leader of Government business in the House.

According to the draft Act, the PM shall organise, reorganise and streamline the activities of Government and assign respective responsibilities to the various ministries for the realisation of the set policies and programmes.

The PM shall also ensure that the laws passed by Parliament are executed.

But a departure from the previous setup will be that the PM, who shall be executing the laws, shall answer in Parliament any omissions or commissions by Government.

Previously, neither the President nor the Head of Civil Service attended parliamentary sessions to defend the Government in the House, leaving it to ministers.


In and outside the House, all ministers and ministries shall be under the direct supervision of the PM who shall assign government responsibilities to the ministers from time to time.

Under the Bill, the Cabinet shall consist of the President, the Vice-President, the PM, the two deputy PMs, the Attorney-General and other ministers.

The Bill is, however, silent on whether it is the President or the PM to chair Cabinet meetings, leaving a grey area to such an important function.

The Law Society of Kenya chairman, Mr Okong’o O’mogeni, says the legal committee under the AG must work out the nitty-gritty of the functions and roles of both PM and the President.

"These should spell out who chairs the Cabinet and when does the PM and President meet and under what point can the President veto a PM’s decision," said Omogeni.

Also bound to change drastically to accommodate the coalition arrangement will be the old Standing Orders which cannot be used to effectively run the affairs of the House following the re-structuring of government.

Next week, Parliament is likely to fast-tack the amendment of the Standing Orders so they can reflect the new power structure and clear the PM and VP roles in the House.

The current Standing Orders do not make any reference to the PM whereas they formally recognise the Vice-President as the official Leader of Government Business.

Without an official opposition, there will be need to amend the Standing Orders to indicate whether those in the Government can sit and transact business from either side of the Chamber.

Reporting by Martin Mutua, Alex Ndegwa, Patrick Wachira, David Ohito, Murigi Macharia, Abiya Ocholla, Lucianne Limo and Edith Forutnate

[adongo23456]

And more

www.eastandard.net/news/?id=1143982850&cid=15

[enigma]

kamalet said:

I have been able to see the Bill in the form it was released after 28th February.

This bill in its present format will be a constitutional headache to get through and only raises the possibility of it being rendered illegal by the high court as it is in various places inconsistent with the constitution.

Section 3(1) There shall be a Prime Minister of the Government of Kenya and two deputy prime ministers who shall be appointed by the President in accordance with this section

This section would need to be entrenched in the constitution since if these offices are not named in the constitution, then they can be read as subordinate to the offices established in the constitution, namely the President, the Vice President and cabinet ministers. Ideally then, unless the constitution is amended first before bringing this Act to the House, then the time lapse is enough for a smart alec to render this Section illegal.

The Act has constant reference to "the Coalition". Can this be construed to mean ODM? PNU is already in a written and agreed Coalition arrangement with ODM-K. I think that the PNU can and would be entitled to enlist the sipport of ODM-K and other parties to form that coalition in competition with ODM. If you read section 2 it becomes clear what this is all about:

The person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of:

a) The political party that has the largest number of members in the National assembly or

b) a coalition of parties in the event that the leader of the political party that has the largest number of members of the National Assembly does not command the majority in the National Assemblly.

This means that ODM MUST enter into a coalition with another party to get the requisite majority of 112 seats in the house for the party to provide a Prime Minister. (Please read my earlier thread on how Raila can be stopped).

Duties of the Prime Minister:

a) He shall have authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya including those of ministries.

b) May assign duties to the deputy prime ministers including deputising for him

c) Shall perform such other duties as may be assigned to him by the President or under any written law.

Nothing much really to this apart from the ambiguity of what happens to the role of the head of Public service who previously undertook the duties. If you read section C, then this seems to suggest a case of working together rather than sharing power if the duties of the PM are to be assigned by the President.

Section 4 (2) is even trickier:

In the formation of the coalition government, the persons appointed as ministers and assistant ministers from the political parties that are partners in the coalition other than the President's party shall be nominated by the parliamentary leader of the party in the coalition.

I suppose this takes care of Kalonzo, Uhuru and Kombo with their respective parties in coalition with PNU and the new entrant in the name of ODM.

Section 4(3) throws a spanner in the works!
The composition of the coalition government shall at all times reflect the relative parliamentary strengths of the respective parties and shall at all times take into account the principle of portfolio balance.

This means that Raila's ODM can by right demand to have the highest representation in the cabinet on account of this section as they are the parties with the largest number of member of the national assembly!

Section 4 (4) The office of the prime minister and deputy prime minister shall become vacant only if:

(c) the coalition is dissolved.

Section 6. The coalition shall stand dissolved if:

(c) one coalition partner withdraws from the coalition by a resolution of the highest decision making organ of the party in writing.

If you read my earlier view of who are the coalition partners to this Act, then rightfully, if Kalonzo's ODM-K was to leave the coalition (since they are in coalition and are not members of the President's party PNU), this could kill and dissolve the coalition! What about Uhuru's Kanu?

Section 8. This Act shall cease to applu upon dissolution of the tenth parliament, if the coalition is dissolved, or a new constitution is enacted whichever is earlier.

We all read about a referendum next year for a new constitution. It is unlikely that the new constitution will lead to a general election, so if the referendum endorses the new constitution, this will be the end of this arrangement.

Personal Views

I cannot believe that this Act was the result of the negotiations between the 8 people working with Koffi Annan. In that group were 4 prominent lawyers who would not have allowed for such an Act. My view is that the legality of what Kofi and his team were pushing is what led to suspension of the talks. Kofi and his team then drew up the agreement which Raila and Kibaki signed for the sake of Kenya.

It is an Act riddled with loopholes and illegal sections that other lawyers - including the speaker- will not entertain in the house. It also does not surprise me that some PNU hardliners are so quick to endorse the agreement upon which the Act is based. Question is - are they happy to hoodwink the nation that they support his knowing fully well that it is a bad Act? Will ODM seriuosly walk into this Act knowing it is flawed or will they reject it?

Today, James Orengo explained the difficulties they have as they cannot change the agreement of the principals (and I am hoping this was the reason for the meeting yesterday between the two) and the fact that it is not an Act that can be entrenched into the constitution in its present form.

Someone out there is playing with the minds of Kenyans!

Am sure you already know this, parliament is the supreme law making institution in a common law system which Kenya happens to follow. And parliamentary statutes are full of inconsistencies which judges do highlight from time to time. However, the courts cannot declare a statute an illegality, and even if they did attempt such a declaration, it would be a mere commentary. This is called hierarchy. I have also heard it mentioned that sections of the statutes and the constitution affected by this bill will be reviewed with the aim of amending them in order to correct mistakes and contradictions. So smart alec will be advised by a learned friend that matters are being dealt with by the baba na mama of the law and he best cool his heels.

[job]

Kamale,

You finish your argument by opining that "someone out there is playing with the minds of Kenyans".

Well, that "someone" will soon realize that millions of Kenyans, especially those still stranded in cold tents, and the international community, will not entertain their games. AND THAT SOMEONE WILL HAVE TO DIRECTLY FACE FUTURE RESPONSIBILITY & CONSEQUENCES OF ANY RESULTANT DEATHS OR SUFFERING IN CASE OF FAILURE TO AGREE BASED ON THEIR "PLAYING".

I get amused when I repeatedly see several arguments that make the assumption that this reconciliation effort is a homegrown solution. NO, it is not. It is an internationally prescribed solution to broker reconciliation via a political settlement. So bringing the usual local games on this settlement may have more than just local consequences.

Whenever you think about this Bill, it would be helpful to put into context, the expectations of the Bill's originators. No need for pretence here.

The reality is that Kibaki and Raila did not suddenly have a change of heart to want to share power. They have been forced.

The truth of the matter is that there are whispers at the back of each protagonist's ears, respectively instigating them to renege on the terms of the reconciliation Act. Questions about CONSTITUTIONALITY & LEGALITY are the convenient smokescreens to justify such instigation. However, it is my opinion that these inconsequential antics will be overcome by the overwhelming will to settle the crisis once and for all.

I am thus not surprised when i hear such relentless but muted "concerns" about constitutional loopholes and other legal mumbo-jumbo. Some angry PNU's lawyers will argue the same points you raise. All they need to be reminded is,...there is a legal team from both PNU and ODM, already streamlining the Bill's drafting and detailing the approach towards the constitutional amendment.

The question is,....will some hotheads risk acting to sabotage the process OPENLY & PUBLICLY? I sense they wan't to do a lot of background heckling from their hiding spots lest they get blacklisted by foreign capitals of countries they love to visit.

I still insist that the heavy stick of the international community still hangs over the heads of legislators, technocrats and political players of influence in Kenya, trying to IDENTIFY AND SWIFTLY DEAL WITH sources of SABOTAGE of this...... yet-to-be acclaimed SUCCESSFUL prevention of GENOCIDE in Africa - "courtesy to the speedy and prudent hand of the international community"

IT IS SHAMEFUL THAT WE CAN'T GET OUR ACT TOGETHER FROM WITHIN, SO WE HAVE TO SUBJECT OURSELVES UNFORTUNATELY TO THE NOT-SO-GENUINE HANDS OF INTERNATIONAL PLAYERS.

Nevertheless, If I were to genuinely advice any political player in Kenya,.....this Reconciliation Bill (& entire power-sharing settlement) is the last thing you want to attempt to sabotage. Kalonzo Musyoka appears to have learnt this, at least by pretending to publicly support it. Kibaki seems to have appreciated the seriousness both from within and without.

Kibaki realized the magnitude of Kenya's crisis when the riot act (figuratively) was read to him by the team of Kofi Annan, Jakaya Kikwete and Benjamin Mkapa.

Quoting from the UN policy of R2P (The Responsibility to Protect) populations from genocide, ethnic cleansing, war crimes and crimes against humanity ..........Kibaki was bluntly made aware of the collective resolve of the AU, EU, UN, and the British & US governments....to firmly stick to their international commitment to prevent and react to grave crises, wherever they may occur. Kenya was no Somalia, Ethiopia, Rwanda or Darfur to be relegated to the darkness of turmoil and genocide.

In 2005, world leaders agreed, for the first time, that states have a primary responsibility to protect their own populations and that the international community has a responsibility to act when these governments fail to protect the most vulnerable.

We saw this exact scenario in Kenya after the elections. With about 1,000 post-election deaths, we still have more than half a million internal refugees in a country of 33 million. These statistics point to something awfully wrong that justifies invocation of the UN R2P policy.

This is it, in process folks. That policy at work. In this Bill lies hope for Kenya's real and sustainable reconciliation. It is a first step, but certainly not the last,...the journey towards justice, equity, peace and democracy is still long, but it starts with this Bill which is set to give birth to the Reconciliation Act of 2008 that will re-establish the office of Prime Minister of Kenya.

While I appreciate that the fine-prints are in process, important details I still need to know include:

Will the PM's dismissal by parliament be based on a SIMPLE or 2/3 MAJORITY VOTE?

Will the dismissal of the Prime Minister or the dissolution of the cabinet result in an immediate snap election?

Will the Permanent Secretary in the Prime Minister's office serve as Secretary to the Cabinet and head of the civil service?

Who, between the PM or the Permanent Secretary under the PM, will coordinate the work of other Ministry's Permanent Secretaries?

Job

[kamalet]

Adongo,

The Act as presented and signed for by all the negotiating teams has been published in the local media. My initial reading is that they have not changed the wording of the Kofi Annan text.

I am not sure why you would like to think that we can go ahead with a flawed piece of legislation as the solution for this country. There should be no room for anyone to scuttle the law and its intentions, and if the intention was to "award" the PM position to Raila ( a point I do not have a problem with!), then it should be written in such a manner that there can not be mischief. If you look at the Agreement signed by the two, it refers to Kibaki as President and PNU leader. You and I know that PNU has Kibaki as the PNU member whilst the other 42 seats are representations of members of smaller parties that went into a corporate agreement taken care of by the political parties bill just before the elections. So what happens to those in Kanu or Narc-k who are in some coalition with PNU?

There is a huge difference between Kibaki and Raila negotiation and coming to an agreement and a specific law that does not narrow the issues to the two politicians. That Adongo is the Act. Read it and digest it. When it is challenged in court, it will not be a case for argument that the Act intended Kibaki and Raila to have a cosy arrangement - it will be read and implemented as understood.

It is a pity that you think the politicians have any thought for Kenyans and hence would think about your relatives in Nyanza or mine in Njoro. When they initiated the mayhem after the elections, they were thinking of their positions rather than your and my well being.

I am surprised that you actually think the law in its form means that Kimunya or any other is answerable to Raila. Just what do you understand about "supervise and coordinate" when it comes to the relationship between Raila and ministers he has not appointed and cannot sack? The most he can do to an unco-operative minister is to report him to Kibaki and hope that Kibaki does something. He cannot run to parliament and tell them, "guys, I am sorry I cannot give you and answer because Kalonzo Musyoka refuses to give me the information". That is recipie for a government shambles. To me such a clause only makes him a lame duck PM and that is what I am quarelling.

Finally. I agree with you that the deal is between ODM and PNU and that is fair to say. However, the Act cannot and does not mention ODM in name and the closes that PNU comes to being names is when in section 4(2) reference is made to the President's party. The Act its present form includes Kalonzo, Uhuru, Kombo, Ngily and Mwau for kicks as they will be deamed to be parliamentary leaders in their own right and with legal capability to form a coalition!

Job,

I am convinced that the mumblings are genuine and I would honestly be suprised if ODM members do not raise their own concerns about the law.

Raising concerns about the law in its present form should not be seen only on the basis of killing the deal. In my mind I think it should be seen in the light of ensuring that it is strengthened to keep the deal alive. It is pointless to agree on something that can die "LEGALLY" in a few weeks, simply because some of us are too eager to see a PM from our party. I do not think Raila wants to be PM for the sake of his ego - it must be driven by a higher yearning for the country. Consequently, if the law is flawed and it denies him that opportunity because he was in a rush to become PM, the loss apart from being his will be to the country!

Unfortunately, the legal teams did not change anything in the draft bill of 28th February and the entire negotiating team have appended their signatures to this flawed piece of legislation.

You say millions of Kenyan would not wish to be taken for a ride. After you read the draft Bill, I hope you will see where I am coming from and realise the gaping loopholes can only be deliberate.

Enigma

I think you need to study a bit of law. It is the role of courts to determine the unconstitutionality of any Act of parliament. If they do, the make reference to the constutition which will make that law null and void to the extent that it is inconsistent with the constitution. Parliament makes the laws and that is the extent of its supremacy.

[Daktari wa makazi]

Hey Guys,

I am at home and I have read Kamale's post. Unfortunately, I can only access cybercafe for a short time.

Here is my quick response.


It is common view that ODM-K and KANU were taken to be part of the PNU. Indeed, KANU and ODM-K nominated spokesmen for the negotiation process. Now to give ODM-K and KANU a separate and distinct existence from the grouping - PNU will be wrong as that will be only an after the event interpretation of the signed
deal between PNU and ODM with their respective constituents. That means ODM-K and KANU can withdraw from the grouping of PNU without affecting the signed deal because the deal was between PNU and ODM. The same applies to NARC, NARC-K, FORD-K, etc. These are constituent parties and their movement cannot and will not affect the signed deal between the principal parties which will be crystallized into an act starting today.

Now to the question about removing PM by Parliament. Kamale's views are confused and elicit contemptuous response.

My view is that the PM be voted out of office only by 2/3 vote not simple majority. I say that simply because the Act which created the PM office is an entrenched one which can only be changed by 2/3 vote. That is what entrenched means so that no Moi style
deletion of Act by show of hands - simple majority.

It only follows that if the Act needs 2/3 vote to be deleted, then the creation of that Act, the PM, also enjoys the 2/3 protection not simple majority.

As to the question of Permanent Secretaries, I think the PM's permanent secretary will oversee all the other permanent secretary, and that the Office of President will not have a permanent secretary. The president will still chair cabinet but the day to day running will be done by the PM. The reason why the president will chair the cabinet is because defence, finance and foreign affairs policies can only made at cabinet level, but it will still be the PM job to oversee the implementation of all gov't policies. Let us not forget ministries are run by permanent secretary but are politically headed by a Minister who is answerable to Parliament, and to the PM who by extension must takes the overall responsibility. So for example, the PM will brief the cabinet and parliament of any gov't decision, like say going to war.

On the question of unconstitutionality of the Act, my views are there is nothing of the sort. The Act does not have to be
precise about its methodology - that is for the secondary legislation, statutory instruments, to define and fine tune.

So long, people.

[kamalet]

Sadik,

Once again you are being contemptuous of me for all the wrong reasons :-)

The Act provides for the removal of the PM by a resolution supported by a Majority of all the members of the National Assembly excluding ex-officio members, which is pretty much what the constitution provides for in a vote of no confidence on the government.

The deal as you RIGHTLY say is between ODM and Kibaki's PNU. Remember that Kibaki also has another deal between his PNU and ODM-K. Now when you come to the written law, would you be able to convince the court that the law intended to make the deal between the two legal and yet did not mention it?

I am surprised that you still do not seem to agree with me that the law is bad and will in effect kill a good idea when challenged and the more reason why it needs to be fixed NOW rather than later!

[kamalet]

Adongo,

Have you seen the draft bill? Happy to mail you a copy.

Should help remove the distortions by the Standard.

Kamale

[adongo23456]

Kamale

This should answer your concerns. They are talking about four bills including a constitutional amendment bill which I presume is the power sharing bill.

politics.nationmedia.com/inner.asp?pcat=NEWS&cat=TOP&sid=1587

By the way what exactly is the Ethnic Commission Bill about?

[enigma]

kamalet said:

Adongo,

The Act as presented and signed for by all the negotiating teams has been published in the local media. My initial reading is that they have not changed the wording of the Kofi Annan text.

I am not sure why you would like to think that we can go ahead with a flawed piece of legislation as the solution for this country. There should be no room for anyone to scuttle the law and its intentions, and if the intention was to "award" the PM position to Raila ( a point I do not have a problem with!), then it should be written in such a manner that there can not be mischief. If you look at the Agreement signed by the two, it refers to Kibaki as President and PNU leader. You and I know that PNU has Kibaki as the PNU member whilst the other 42 seats are representations of members of smaller parties that went into a corporate agreement taken care of by the political parties bill just before the elections. So what happens to those in Kanu or Narc-k who are in some coalition with PNU?

There is a huge difference between Kibaki and Raila negotiation and coming to an agreement and a specific law that does not narrow the issues to the two politicians. That Adongo is the Act. Read it and digest it. When it is challenged in court, it will not be a case for argument that the Act intended Kibaki and Raila to have a cosy arrangement - it will be read and implemented as understood.

It is a pity that you think the politicians have any thought for Kenyans and hence would think about your relatives in Nyanza or mine in Njoro. When they initiated the mayhem after the elections, they were thinking of their positions rather than your and my well being.

I am surprised that you actually think the law in its form means that Kimunya or any other is answerable to Raila. Just what do you understand about "supervise and coordinate" when it comes to the relationship between Raila and ministers he has not appointed and cannot sack? The most he can do to an unco-operative minister is to report him to Kibaki and hope that Kibaki does something. He cannot run to parliament and tell them, "guys, I am sorry I cannot give you and answer because Kalonzo Musyoka refuses to give me the information". That is recipie for a government shambles. To me such a clause only makes him a lame duck PM and that is what I am quarelling.

Finally. I agree with you that the deal is between ODM and PNU and that is fair to say. However, the Act cannot and does not mention ODM in name and the closes that PNU comes to being names is when in section 4(2) reference is made to the President's party. The Act its present form includes Kalonzo, Uhuru, Kombo, Ngily and Mwau for kicks as they will be deamed to be parliamentary leaders in their own right and with legal capability to form a coalition!

Job,

I am convinced that the mumblings are genuine and I would honestly be suprised if ODM members do not raise their own concerns about the law.

Raising concerns about the law in its present form should not be seen only on the basis of killing the deal. In my mind I think it should be seen in the light of ensuring that it is strengthened to keep the deal alive. It is pointless to agree on something that can die "LEGALLY" in a few weeks, simply because some of us are too eager to see a PM from our party. I do not think Raila wants to be PM for the sake of his ego - it must be driven by a higher yearning for the country. Consequently, if the law is flawed and it denies him that opportunity because he was in a rush to become PM, the loss apart from being his will be to the country!

Unfortunately, the legal teams did not change anything in the draft bill of 28th February and the entire negotiating team have appended their signatures to this flawed piece of legislation.

You say millions of Kenyan would not wish to be taken for a ride. After you read the draft Bill, I hope you will see where I am coming from and realise the gaping loopholes can only be deliberate.

Enigma

I think you need to study a bit of law. It is the role of courts to determine the unconstitutionality of any Act of parliament. If they do, the make reference to the constutition which will make that law null and void to the extent that it is inconsistent with the constitution. Parliament makes the laws and that is the extent of its supremacy.

Which law did you study? Is it designated LLB?I suggest that you re-read it, especially constitutional law. Can you cite any precedents to such declarations of uncostitutionality in Kenyan law or indeed the commonwealth? What followed?

[adongo23456]

I guess we are in for interesting times!

www.eastandard.net/news/?id=1143982926&cid=4

[politicalmaniac]

adongo23456 said:

I guess we are in for interesting times!

www.eastandard.net/news/?id=1143982926&cid=4

PNU has no choice but to play ball.
And the 'Prez' seems to have realized that he cant engage in the 'na mta do nini?' kind of dismissive attitude.
Poor ka-ruci, she of the 'domo domo fame' was no where to be seen, at least Mama Wa Taifa Ida is there!

[mank]

For me it is scaring to see these guys laughing so much together, at the same time that I hear the absence of an official opposition being rationalized as a good thing. We need constructive differences. This coalation will be what Kenyans expected only if there is a honest competition of ideas. Too much love across parties, in the absence of competition, will only yield poor service to the nation.

[JAHAATWACH]

adongo23456 said:

I guess we are in for interesting times!

What should we make of this? There are active minds like Martyn Drakard who are asking all kind of questions allafrica.com/stories/printable/200803060816.htm

As for me, the emerging matrix takes me back into time, in the political heyday of the legendary Dr William Odongo Omamo. The son of Nyaroche as he is known to some of us, would employ his native humour to preach a political concept simplified in a sensational luo catch phrase tena to ateni

The literal meaning of tena to ateni that I can think of is stick by me and I will stick by you as sang by UB40 in their album, Labour of Love.

The fact that the proposed grand coalition government will collapse if Raila or Kibaki pull their team out of makes Omamo's political dictum even more timely. Kibaki and Raila now depend on each other but as the burly Bill would counsel, it all depends on the other's effort.

"tena tateni, kitena to ateni"( stick by me and I'll stick by you; if you do stick by me, I'll surely stick by you)as Omamo would say, is whhat matters now in this new arrangement between Raila and Kibaki.

[einstein]

kamalet said:

I have been able to see the Bill in the form it was released after 28th February.

This bill in its present format will be a constitutional headache to get through and only raises the possibility of it being rendered illegal by the high court as it is in various places inconsistent with the constitution.

Section 3(1) There shall be a Prime Minister of the Government of Kenya and two deputy prime ministers who shall be appointed by the President in accordance with this section

This section would need to be entrenched in the constitution since if these offices are not named in the constitution, then they can be read as subordinate to the offices established in the constitution, namely the President, the Vice President and cabinet ministers. Ideally then, unless the constitution is amended first before bringing this Act to the House, then the time lapse is enough for a smart alec to render this Section illegal.

The Act has constant reference to "the Coalition". Can this be construed to mean ODM? PNU is already in a written and agreed Coalition arrangement with ODM-K. I think that the PNU can and would be entitled to enlist the sipport of ODM-K and other parties to form that coalition in competition with ODM. If you read section 2 it becomes clear what this is all about:

The person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of:

a) The political party that has the largest number of members in the National assembly or

b) a coalition of parties in the event that the leader of the political party that has the largest number of members of the National Assembly does not command the majority in the National Assemblly.

This means that ODM MUST enter into a coalition with another party to get the requisite majority of 112 seats in the house for the party to provide a Prime Minister. (Please read my earlier thread on how Raila can be stopped).

Duties of the Prime Minister:

a) He shall have authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya including those of ministries.

b) May assign duties to the deputy prime ministers including deputising for him

c) Shall perform such other duties as may be assigned to him by the President or under any written law.

Nothing much really to this apart from the ambiguity of what happens to the role of the head of Public service who previously undertook the duties. If you read section C, then this seems to suggest a case of working together rather than sharing power if the duties of the PM are to be assigned by the President.

Section 4 (2) is even trickier:

In the formation of the coalition government, the persons appointed as ministers and assistant ministers from the political parties that are partners in the coalition other than the President's party shall be nominated by the parliamentary leader of the party in the coalition.

I suppose this takes care of Kalonzo, Uhuru and Kombo with their respective parties in coalition with PNU and the new entrant in the name of ODM.

Section 4(3) throws a spanner in the works!
The composition of the coalition government shall at all times reflect the relative parliamentary strengths of the respective parties and shall at all times take into account the principle of portfolio balance.

This means that Raila's ODM can by right demand to have the highest representation in the cabinet on account of this section as they are the parties with the largest number of member of the national assembly!

Section 4 (4) The office of the prime minister and deputy prime minister shall become vacant only if:

(c) the coalition is dissolved.

Section 6. The coalition shall stand dissolved if:

(c) one coalition partner withdraws from the coalition by a resolution of the highest decision making organ of the party in writing.

If you read my earlier view of who are the coalition partners to this Act, then rightfully, if Kalonzo's ODM-K was to leave the coalition (since they are in coalition and are not members of the President's party PNU), this could kill and dissolve the coalition! What about Uhuru's Kanu?

Section 8. This Act shall cease to applu upon dissolution of the tenth parliament, if the coalition is dissolved, or a new constitution is enacted whichever is earlier.

We all read about a referendum next year for a new constitution. It is unlikely that the new constitution will lead to a general election, so if the referendum endorses the new constitution, this will be the end of this arrangement.

Personal Views

I cannot believe that this Act was the result of the negotiations between the 8 people working with Koffi Annan. In that group were 4 prominent lawyers who would not have allowed for such an Act. My view is that the legality of what Kofi and his team were pushing is what led to suspension of the talks. Kofi and his team then drew up the agreement which Raila and Kibaki signed for the sake of Kenya.

It is an Act riddled with loopholes and illegal sections that other lawyers - including the speaker- will not entertain in the house. It also does not surprise me that some PNU hardliners are so quick to endorse the agreement upon which the Act is based. Question is - are they happy to hoodwink the nation that they support his knowing fully well that it is a bad Act? Will ODM seriuosly walk into this Act knowing it is flawed or will they reject it?

Today, James Orengo explained the difficulties they have as they cannot change the agreement of the principals (and I am hoping this was the reason for the meeting yesterday between the two) and the fact that it is not an Act that can be entrenched into the constitution in its present form.

Someone out there is playing with the minds of Kenyans!

Palaver yesterday, just like Kamale sometime back, wondered:

<<More interpretation madness on the national accord. First, Palaver wondered whether the "grand coalition government" it referred to was a Cabinet (as some encyclopaedias define it) or, as laymen see it, all of government. Now he asks whether the "two equal partners" referred to in the coalition document are Kibaki and Raila or the Government/ODM-Kenya coalition and the Orange Democratic Movement. And what of "consultation" on appointments? Doesn’t that leave room for the President to refuse some of the Prime Minister’s suggestions? Looks like the accord’s ambiguous language is just a new source of discord. >>


jukwaa.proboards58.com/index.cgi?board=general&action=display&thread=1205168618&page=1


And Einstein’s theory then (refer to the above thread), was that Kamale knew what he was talking about!


My question to Kamale today is “Are the PNUs really ready for fresh elections as they claim? Are they taking cue from the latest mood on Jukwaa with regard to the need for fresh elections?”