KIBAKI'S FIRING OF CABINET IRREGULAR & UNLAWFUL

[miguna]

PRESIDENT KIBAKI’S FIRING OF CABINET IS IRREGULAR AND UNLAWFUL
By MIGUNA MIGUNA* - 24 November 2005

Various Kenyan political and legal commentators have robustly and uncritically hailed President Kibaki’s unilateral decision to fire his entire Cabinet on November 23rd, 2005 as either the right or wise thing to do. I strongly disagree.

The commentators have argued that the sudden, sweeping and unprecedented action was long overdue; that the president deserves to be surrounded by both a loyal and “functioning” cabinet.

In support of this argument, the Kenyan commentators have provided the following reasons. First, they have blamed the apparent dysfunction, division and disagreements within the unceremoniously fired cabinet. According to this line of argument, the government could not properly deliver on its pre-election promises without cabinet cohesion. The president himself gave this reason in his concession speech, immediately following the Electoral Commission of Kenya’s announcement of the Referendum poll results. In his live radio and TV broadcast, President Kibaki announced that his government had accepted the popular decision of the Kenyan people; that he will continue to govern using the old constitution and that his primary focus will be on the delivery of development to the people. The president did not mention anything about what he would do to satisfy one of the key pre-election demands of the people and his pre-election promise to deliver a people-driven constitution within one hundred days of taking office. No attention has been properly given to the actual reasons for the dysfunction, division or disagreements, as perceived by our commentators or whether it is the president who is to blame for these perceived failures, and if so, whether he is the one who should be or has been fired by the people of Kenya. Neither has president Kibaki addressed himself to the real reasons why he has failed to deliver on services and development to the people.

Second, the commentators have argued that the constitution allows the president to hire and fire his cabinet at will; that the cabinet serves at his sole pleasure and discretion; and that he does not have to give reasons for his decision. This argument fails in many respects.

The first major pitfall inherent in this argument is its failure to recognize the nature of president Kibaki’s government. As some of us have often stated, the Narc government was not formed by one united party; it was supposed to be a united alliance of coalition partners constituting the National Alliance Party of Kenya (NAK), which also contained many small parties including the Democratic Party of Kenya (DP), and the Liberal Democratic Party LDP. This critical point must underpin any legitimate analysis of the current political situation.

President Kibaki belongs to the DP faction of NAK. It is trite but necessary to emphasize the obvious fact that Kibaki could not have won, and he did not win, the presidential election in December 2002 as an individual. Neither did he do so as the head of the DP. It deserves to be stressed that the current government neither belongs exclusively to Mwai Kibaki nor to the DP faction of NAK. The government was not and could not have been intended or conceived as Kibaki’s private property to do with as he wished or deemed necessary.

The Narc government’s set-up is not comparable to the American Presidential system. Whereas in the United States of America, the president is first and foremost chosen by a political party (not a coalition) and secondly elected directly by the people as a representative of that political party, with all its attendant programs and election promises, in Kenya in December 2002, President Kibaki was only mandated to head a coalition government called Narc.

This entails that he was and is not permitted to make any unilateral decisions, including the composition of his cabinet, without first consulting and obtaining the agreement or consent of his coalition partners. In essence, the president’s initial decision of abrogating the MOU, arbitrarily appointing his cabinet without any regard to the LDP and continuing to rule by decrees rather than govern collegially, demonstrates his personal limitations in so far as correctly understanding and applying the rules of national coalitions and modern democratic governance.

Second, the argument that president Kibaki is constitutionally allowed to fire and hire cabinet ministers at will glosses over the very nature and function of a multiparty democracy; it also shows a fundamentally misunderstanding of its proponents of the theory, philosophy and political implications of both constitutionalism and modern democratic practice. But even more importantly, it fails to properly understand the contents of the current Constitution of Kenya.

Article 16(1) of the Constitution of Kenya states that: “There shall be such offices of Minister of the Government of Kenya as may be established by Parliament or, subject to any provisions made by Parliament, by the President.” Clearly, this provision requires that there be cabinet ministers at all times. It also provides that the president can only appoint any such ministers as directed by Parliament. The role of Parliament is not only crucial, its involvement, direction, guidance or instruction is a condition precedent to any presidential decisions regarding cabinet appointments. In a functioning democracy, the president is required to fully appreciate not just the plain meanings of the Constitution, he or she must also be aware of all implications of his or her decisions on the people and institutions of governance.

Article 16(3( (a) to (c), which seem to be the sections relied on by both President Kibaki and these commentators in exclusion of all other sections and principles of democratic governance, provides that: “The office of a Minister shall become vacant if the President so directs; or if the holder of the office ceases to be a Member of the National Assembly; or if the National Assembly is dissolved and the Minister was a member of the dissolved Parliament.

However, Article 16(3) does not stand alone; it actually leans on Article 16(1) cited above. As well, a constitution, whether written or unwritten, is simply an organic and fundamental law of a nation or state, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments or ministries, and prescribing the extent and manner of the exercise of sovereign powers. A constitution derives its whole authority from the governed. Essentially, it ought to be a Charter agreed upon by the people (in this case, the people of Kenya.)

Article 1A states that: “The Republic of Kenya shall be a multiparty democratic state.” There is no qualification to this section. Consequently, any powers the constitution bestows on president Kibaki must be exercised in a manner consistent with this primary article. Any act on the part of the president that undermines the multiparty or democratic aspects of our country, is, in so far as it contradicts this section, null or void and should be disregarded, opposed or resisted.

By overwhelmingly rejecting president Kibaki’s government project in the form of the Wako Mongrel Draft Constitution on November 21st, 2005, the people of Kenya strongly asserted their sovereignty and clearly directed president Kibaki on what he must not do. The people did not do this because they wanted or desired the president to rule them through decrees. Their declaration was not a demonstration of approval of the current or old constitution. Neither did the people give president Kibaki permission to continue doing what he has persistently done since taking power; that is, disregard, stifle and undermine his coalition partners. The president is wrong to assume that the rejection of the mongrel draft had anything to do with mere disagreements within his cabinet.

The people’s popular vote was a clear message to Kibaki that it is time he changed course, started listening to them and his coalition partners and that he was elected to govern through consultation. The people rebelled against arrogant brinkmanship of a tribal elitist cabal from the GEMA communities. The people rebelled against the politics of cronyism, grand corruption and governance by fiat.

Democracy is a system of government in which the sovereign power resides in and is exercised by the whole body of free citizens directly or indirectly through a system of representation, as distinguished from a monarchy, aristocracy, or oligarchy.

As such, president Kibaki’s unilateral fiat at firing all members of the cabinet, including key coalition partners, flies in the face of true democratic practice. It is instructive to note that before issuing his illegitimate and unlawful decree, Kibaki met with a select group of his kitchen cabinet that the people of Kenya have just two days ago rebelled against. According to reports from the LDP, its members were neither consulted nor informed beforehand of this drastic decision. This proves that president Kibaki does not believe in democracy. He acts and conducts himself as a monarch. Retreating back to the colonial and post-colonial class of opportunists will not help this time. Handing over political power to selected bureaucrats without the people’s permission is both illegitimate and unlawful.

Consequently, given president Kibaki’s consistent and persistent disregard for the people, his coalition partners, the law, the constitution and court orders, it is time that he took the next logical step and called for fresh elections so that the people of Kenya can make a decision on how they will be governed and by whom.
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*The writer is a Barrister & Solicitor in Toronto, Canada

[job]

Miguna,

Thanks for this important legal input. For how long will Kibaki continue entangling himslef in these Illegal survival schemes.

Job.

[otieno]

Excellent analysis.So what's next?As you summarised,the next logical step is to call for a General Election.While i feel that the electorate is weary of the constant politicking,this is a crucial juncture in Kenya's history and we must see it through.

BTW who advises this guy?This move cements the fact that he is not interested in reconciling his Goverment with the publics decision.Unfortunately,for him,it may be too late.Kibaki had ample opportunity to disavow the ethnic hatred,corruption and arrogance of his inner circle.The Wako Draft will serve as his waterloo,but really it was clear from the beginning that the NARC coalition was only a strategy to gain power .

I'm intrigued by the two week period.What's he going to do?And will select ODM leaders start positioning themselves for compromise ,and for plum cabinent jobs.I add one suggestion to your analysis;that Kibaki find a way to get rid of Wako, for a smart AG would have advised his President to implement Bomas,GEMA elitists be damned,because he could have stayed above the fray but is now completely linked with this defeat.

[adongo12345]

Miguna,

I thought the views of Chaacha Mwita of the Standard approach the level of your boldness which we need. You probably read it already but I will post it below. My thinking is that this thing is going to lead to early elections, but it is going to be a process. Kibaki is going to try his level best to reinvent himself and he is getting a lot of help from cheerleaders who want him to start a "new leaf" with a "cohesive Cabinet". the Kenya media and political "analysts" and commentators are notoriously timid when it comes to challenging authority. I am therefore not surprised with the chorus of "the president has done the right thing, now lets all get along" kind of message.

I am trying to wrap my mind around the direction of things but it looks to me like if Kibaki continues playing around, mass action and other forms of civil protest and activity is inevitable. Kibaki is already scared of the parliament. Now he wants to run the governemnt through Muthaura and Alfred Mutua and the MKM PS's. These guys are covering up lots of the mess they made stealing money to finance the failed Wako fraud. We are going to catch up with them.

This is what Chaacha Mwita wrote:

Why a snap poll is also a good choice for Kibaki
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By Chaacha Mwita

Sorry Kenyans! I’ll have to disagree with those of you who argue that the President should now constitute a Cabinet that will unite and heal the country.

I’ll have to disagree with those of you who argue that the President should revisit the 2002 pre-election MoU he signed with LDP and start there.

I’ll even have to disagree with those of you arguing that he should call Raila Odinga and together constitute a Cabinet.

While I disagree with all of these groups of people, I wish to emphasise that I do so in the knowledge that many are happy to proclaim admiration for tenets of democracy but very few are willing to stand by such tenets at moments of great tests such as we face today.

Therefore, I do so fully cognisant of the fact that what you are prescribing for our President falls far short of the theory and practice of democracy.

So far, what my president has done to great acclaim from many quarters is a major fraud of democracy.

What the President should have done is something more radical, something so earth shattering it would be unbelievable, something that would nonetheless be the noblest thing to do in a democracy and in the circumstances obtaining. He should just have resigned and called a snap poll.

Why? The world over, when a president fails in a major referendum like this one; one in which he has staked his very presidency, he has to resign. The writing of law may allow him to hold on, but the principles of democracy demand either his total exit or his seeking a new mandate from the people.

In a democracy when the Head of Government — in this case our President — personally spearheads a course that the people reject with a convincing majority, such a leader resigns.

In the current constitutional dispensation, Kibaki can stay on legally. But democratic principles do not allow him to stay on. Elsewhere, heads of government do not stay on in circumstances such as this even where they are legally permitted to do so.

In many of those countries, however, the presidents get to stay on because they are rarely heads of government. They are heads of state with prime ministers being heads of government. Therefore, this is the one respect in which a president would wish he had a prime minister to send back to the electorate as he (the president) enjoys his term in office.

Unfortunately for our President, Kenya has no (executive) prime minister. So Kibaki should shoulder this weight personally.

But over and above democratic practice, unique conditions in the country demand that Kenyans be given an opportunity to elect a new government. In the just concluded referendum, they have said they have no faith in this Government’s ability to initiate development projects — such as the "government project" the proposed new constitution was.

Kenyans, lest you forget, the draft you have just rejected was passed in Parliament. On what justification would Parliament as currently constituted continue to make laws for you?

The draft you rejected was done by Amos Wako. On what basis should he continue to be the government’s principal legal advisor when he is so obviously at variance with the people’s requirements?

The draft you rejected was given tacit support by the Judiciary which ruled that we go to a referendum despite there being no referendum law in place; in fact they decided we go to a referendum in direct contravention of Section 47 of our current Constitution.

What one is saying here is that the three critical arms of government are too compromised to continue operations. The Executive (President and Cabinet) are compromised; the Legislature (Parliament) is compromised; and the Judiciary too is compromised. They all need a fresh mandate from the people and hence the need for a General Election! After the aborted 1982 coup, Kenya had to go for a snap poll to unite, purge and heal the country. Now too we need a snap General Election. This is so obvious, I wonder why no "analyst" has said so yet!

For Kibaki as a person — a statesman, a democrat, a confident leader of the people, a remorseful noble man — he would achieve a lot and define a permanent legacy by resigning and calling a snap poll. Very few of those who have embarrassed Kibaki so would make it back after a campaign. They would forever be remembered as the most successful architects of a squandered dream.

But Kibaki would also be telling Kenyans: "Look here, you’ve proved I was wrong in supporting a constitution you did not want. Please lend me your wisdom by giving me a new group of MPs I can work with. I am sorry and as evidence of this, I am asking you to give me a fresh mandate and a fresh team to enable us start afresh." I am not being hard on Kibaki. This is the world of politics. Besides, democracy is a double-edged sword! It cuts both ways. Embracing democracy means embracing it warts and all.

In the event that Kibaki disregards this time-tested democratic principle, here’s what will happen: The Orange Democratic Movement will demand a specific number of Cabinet slots as well as dictate which ministries they should take charge of. This cannot please any president. So Kibaki will ask them to go to hell.

But instead, they will make governance literally hell for him because they would rather continue weakening him ahead of 2007 rather than be subservient to a wounded and bleeding president.

After all, they have been fighting for the last three years, what is there to stop them from fighting for two more years? But if Kibaki calls for a snap poll, he will not only save whatever little support he has remaining, he could gain more. Ultimately, if he loses at the poll, he’ll have an honourable exit from State House.

* The writer is Managing Editor, Sunday Standard

[miguna]

Brothers:

Unfortunately, I have just read Chacha's piece. I just loged into the Kenyan papers.

Adongo: you are right about Kibaki trying to reinvent himself. The good news is that he CANNOT. Elections are inevitable. Although Kibaki is pretending to have "fired" all ministers, his inner cabinet still contnue to operate. They are strategizing. We must as well. That is why we cannot air all our thoughts on these fora. They are here, and we don't want to give them a headstart. Let them bumble like they have done in 3 years. It is music to our ears.

Otieno: ODM leaders have come out strongly against any nefarious machinations. They have rejected selective meetings and overtures. That is the way to go. I hope that you carefully read what Ruto and Railsa told the media today. The spin doctors will tell you something else; but we, the people, are hearing.

Job: the journey is long. Let us continue the vigilance. Nothing is impossible. If Kenyans managed to wrestle Moi and Kanu to the grounds; Kibaki can't bwogo them.
Kibaki thinks that he is the "government." The Rainbow Coalition made va big mistake in choosing this man. I was against it throughout. This man does not understand anything about politics. Either that, or he is incorrigible.


Peace [unedited]
-Miguna-

[miguna]

Sir Edward Clay still in touch while Kibaki, through his mouthpiece, has completely lost touch with reality...
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Clay blames Yes loss on graft

Story by MUGUMO MUNENE and PAUL REDFERN
Publication Date: 11/25/2005

Corruption in high places is to blame for the Government's stunning loss in the referendum on new Constitution, former British high commissioner to Kenya Edward Clay has said.

Sir Edward told an audience at Chatham House in London yesterday: "The result was unexpected and in my opinion had a lot to do with corruption. The vote clearly shows the level of dissatisfaction across Kenya.

"A new Constitution, which generally sought to disperse power, would have stopped irresponsible and unaccountable corruption in the Office of the President in particular, where 50 per cent of the current corruption lies," said Sir Edward.

Mood of the country

He said that President Kibaki and the Banana campaign supporters had badly misunderstood the mood of the country which, he said, was for change and a new beginning. "Everyone knows who is involved in corruption and what is going on," he said.

But in a quick reaction yesterday, the Government described the remarks as "wild'', saying Sir Edward knew nothing about Kenyan politics.

Government spokesman Alfred Mutua said that ordinary citizens in rural and urban Kenya knew better than any foreigner why they rejected the Wako Draft.

"The Government is serving the Kenyan people and is not out to please foreigners," he said.

Dr Mutua continued: "Sir Edward is tarnishing Kenya's name and yet he has not provided any evidence to back his claims that some ministers are engaging in procurement with the sole purposes of getting kickbacks. Procurement is done according to priority and when it is necessary."

Kenyan media

But Sir Edward also said that the Kenyan media bore a huge responsibility over the corruption issue. "Where is the inquiring spirit among Kenyan journalists?" he asked.

The retired diplomat also said that the donors had a role to play on the matter. "They need to think carefully about their priorities," he said.

Sir Edward said he was not advocating a withdrawal of British aid to Kenya "which would only affect the very poor at the expense of the sins of the rich," but that the West should not be afraid to push legal action.

But in answer to a question by the Nation, Sir Edward denied that politics was playing a role in the row over the renewal of the agreement over the British army training in Kenya.

"As I understand it, this is a technical problem," he said.

[kamalet]

Miguna,

Do you seriously...seriously think you could stand in a court of law (even in the most primitive of jurisdictions) and hope these arguments could stand? Even not being a lawyer and using commonsense, the stand you take is extremely flawed from a purely legal standpoint.

Why do I say this?

• In the first instance, the Kenya Government is not a coalition government within the meaning of the Kenyan constitution. All MPs elected on the government ticket belong to a party called NARC. None of them was elected under LDP, DP or whatever else party.
  
• The constitution is very clear as you have quoted who the appointing and dismissing authority for ministers of the Kenya cabinet is.
  
• The role of parliament with regard to cabinet is to regulate the number of ministries in which the president can appoint ministers
  

Your incorporation of Section 1A for all practical purposes contradicts the erroneous position you have taken, if the intention was to suggest that he should not have appointed people from other parties not in NARC. Multipartyism is not killed by consolidating more parties into government since if we use the analogy you wrongly use, then the coming together of DP and LDP and other parties should be seen as genocide on multipartyism.

The rest of the diatribe must be seen in the light of Kibaki dissolving his cabinet and a wish that the ODM characters be involved in the appointment of a new cabinet [if it is of any help, they have already said they will not join the new cabinet] which they clearly do not have a mandate to. You can not then go and declare his actions unconstitutional as he has followed the letter and spirit of the law.

The Kenyan people rejected the WAKO DRAFT, this we are in agreement with, and apart from the fact the process ended up fracturing his cabinet, he could have done it in the middle of the process or even waited 5 months to dissolve his cabinet.

I think you should stop this salivating that " we now have a chance at power" for this can be read in your recent couple of posts from many miles away!

Now go ahead...eat me!!

[miguna]

Kamau:

I just did. Go back and read my arguments. The only thing I cannot do at the moment is stand up in any of Kibaki's Kangaroo courts to argue anything. I will lose, of course. I am much wiser than that.

Remember your previous comments on Kibaki's abuse of power, abrogation of court orders and clear constitutional provisions? Remember your proclamation that we cannot injuct the government? (read: Kibaki and GEMA government). Well, the jury - which is the only group I care about on final verdicts - already came back with a unanimous verdict. You and Kibaki were wrong all alomng, on both political and legal issues. You either knew it or you were too arrogant to know, just like now. The SUPREME PEOPLE OF KENYA, the only jury I respect on these matters, declared our arguements King. Now, you can go and tell Kibaki that...But before you do, please read Hassan Kulundu's excellent piece, saying almost precisely what I am saying. 2 + 2 = 4. Is it? As for political power, only the supreme people of Kenya can decide my friend. I am only a starving lawyer!

Otherwise, I wish you and Kibaki peace.

[unedited]
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By Hassan Kulundu


PRESIDENT Kibaki’s decision to sack all members of the cabinet and their assistants in his government can be interpreted in many ways, but it smacks of a furious president incensed by his inability to push through an agenda he thought was good for his political career.

By sacking all his ministers, the president is no different from the proverbial Turkish nobleman who burnt down an expensive carpet merely to get rid of a single fleece!

For the president to dismiss any minister, it acquires a different meaning when read together with Section 17(1) which declares that there shall be a cabinet consisting of the president, the vice- president and the other ministers.

The implication of the latter section is that, for any time that the president exercises executive powers, there must be a cabinet in place and that the cabinet must consist of an officer holding the position of a minister appointed under Section 16(2).

Therefore, for the two weeks that there shall be no ministers, the president could be in violation of at least two sections of the constitution namely Section 16(2) and Section 17(1).

One may cite Section 24 which empowers the president to constitute and abolish offices of the republic.

But Section 24 itself clarifies that what the president does under this section must be subject to the constitution itself.

This means that the president, under Section 24, can only create and abolish offices not created by the constitution itself.

He, ipso facto, cannot abolish a constitutional institution.

It must be acknowledged therefore that the discretionary powers conferred to the president under section 16 sub-Section 3 (a) only empowers him to choose whoever he wishes to hold the office of a minister and does not include powers to not to appoint holders of that office.

The president’s decision to dismiss all ministers at a go amounts to dislocating the institution of the cabinet and therefore unconstitutional!

It must be acknowledged on hindsight that the constitution of Kenya intended ab initio to give executive powers to the president to exercise it in consultation with the cabinet.

Whereas the president is not obliged to take the advice of the cabinet, he at least cannot dissolve the cabinet contrary to what conventional opinion in Kenya has believed for quite sometime.

A careful reading of the sections quoted above therefore indicate that there is a legitimate legal opinion that President Kibaki could be in violation of the constitution for the two weeks that he will run government without a complete cabinet.

Retaining the Vice-President and the Attorney-General does not absolve the president from the constitutional mischief since composition of the cabinet is clearly stated out in Section 17(1) and that the cabinet does not exist at the pleasure of the president.

In view of the possibility that the president could be in breach of the constitution, it is perhaps time that his legal advisers moved closer to him to assist in quenching the president’s fury after losing the referendum vote lest he commits more legal blunders.

There is no doubt that the president has lost confidence in the people he entrusted with ministerial powers and sacking them amounts to showing that displeasure.

But isn’t the president not also to blame for the humiliating defeat? It is on record that he endorsed the Banana campaign and identified with it.

Can he therefore claim that he was misadvised by his ministers? If this was the case, then the president ought to blame himself for being so naive as to be misadvised by his juniors!

[miguna]

Twists & turns..........................
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Kibaki meets Moi


NZAU MUSAU


PRESIDENT Mwai Kibaki and former President Daniel Arap Moi yesterday met at State House, Nairobi.

State House sources, described the meeting that lasted more than one and half hours as “purely consultative”.

The consultative meeting is said to have been held at the invitation of President Kibaki who has since Monday found himself mired in political murk following the rejection by a huge margin of a Draft constitution he had staked his presidency on.

His immediate reaction to the loss which was widely interpreted as a vote of no confidence in his government and leadership, was to send his entire Cabinet packing and on Thursday followed the move by proroguing parliament.

The former president whom he reached out to had himself rejected the so called Wako draft, pointing out that it was a recipe for dividing Kenyans and it was not lost on observers that his stand point played a huge role in influencing the expansive Rift Valley with over 2 million votes to likewise reject the proposed new constitution.

What is more, yesterday’s meeting came as the victors in the referendum contest coalescing around the Orange Democratic Movement and led by former ministers Raila Odinga, William Ntimama, Ochillo Ayacko, Najib Balala, Lina Kilimo, Anyang Nyongo and Kalonzo Musyoka teamed up with Kanu big wigs Uhuru Kenyatta,William Rutto, Henry Kosgey,Chris Okemo and others hardened position and demanded to lead any renewed efforts at constitution making.

The same group was also demanding that Kenyans verdict amounted to rejection of the Kibaki government and hence the need to call for snap elections.

Contacted, the former president’s press secretary and former presidential press service boss Lee Njiru denied knowledge of the said meeting . “I am not aware of such meeting. In fact I am learning of it from you,” said Njiru. The director of Presidential Press Service Isiah Kabira, through his secretary also denied knowledge of the meeting.

But our sources confirmed that the two leaders met and discussed the pre and post-referendum issues. It was not clear however, the agenda of their meeting.

The meeting comes two days after President Kibaki sacked all Cabinet ministers and a day after he suspended the re-opening of parliament. The august House was scheduled to re-open on Tuesday.

It also comes hot on the heels of calls by the Orange Democratic Movement (ODM) for the dissolution of parliament and a snap election. A call that was also echoed by former Justice and Constitutional Affairs minister Charles Njonjo, who told a local TV station that the government defeat in the referendum was a clear indication that Kenyans had lost confidence in the Kibaki administration.

The decision to sack the Cabinet and suspend parliament has created tension with politicians , churches and civil society organisations calling for the dissolution of parliament and subsequent call for a snap election.

It will be recalled that the former president found himself on the firing line by the banana leadership which was spearheading the Draft campaign when they accused him of funding the orange campaign. At some point, a section of banana luminaries threatened to have his retirement benefits stopped.

But the retired president insisted on his earlier call for experts to draft the constitution on behalf of the people.

During the intense referendum campaigns Amos Kimunya, John Michuki and Njenga Karume reportedly met Moi at his Kabarnet Gardens residence, reports which were stridently denied by the then ministers.

Yesterday’s meeting also comes hot on the heels of President Kibaki’s fury with his inner circles whom, according to reports, he blames for having misadvised him on matters concerning the constitution leading to Monday’s crashing defeat.

Pundits have likened the defeat of the bill to the 1982 abortive coup which changed the course of former president Moi’s style of leadership. They now say the loss could mark a turning point in Kibaki’s presidency and the imperative to hold “consultations” with one who for 24 years sat on the hot seat.

In his days on the seat, Moi who used to refer to himself as a ‘political professor’ and he lived up to the billing by constantly confounding allies and foes with political manoeuvres whose sum-total was to consolidate power and stem rebellion from within.

However, the former president never at any point went as far that Kibaki has gone- sacking the entire Cabinet with a single stroke of a pen and in effect catching both allies and enemies gasping for comprehension. Instead, the former president opted for regular but strategic reshuffles which made sure that no minister entrenched himself too deeply.

While Kibaki has been adamant in sacking any of his ministers partly because of the pre-election pact which he dishonoured anyway, pressure has nonetheless been mounting from within to have rebel cabinet members kicked out.

It will be interesting to see what the consultation with Moi leads to. The two who have been in relatively good terms have since met at several public occasions though Moi has also skipped several public functions in which he was officially invited and which President Kibaki attended.

Significant Moi, Kibaki relationship dates back to the early Kanu days under the late president Jomo Kenyatta when Kibaki stuck with Moi against a clique of Kenyatta men who had wanted to block the ascendancy of Moi to power via the change the constitution clamours which peaked in 1977.

The relationship later blossomed when Moi appointed Kibaki his Vice when he took over presidency and faired on well until he dismissed him in the sunset years of the 80’s. Kibaki kept his cool but never forgave him for that sack and when the opportunity beckoned with introduction of multipartysm in 1991, he resigned from government from which he had been serving as health minister and formed the Democratic Party to challenge the former. Kibaki who was elected in 2002 on the platform of new constitution is reportedly being haunted by the pre-election MoU he signed and a rebellion from within which engineered his loss on Monday.

[job]

Miguna,

On Kibaki,...he is trying to use this public relations gimmick and photo-op, to endear to Moi's political base. He is trying to show the public that he is in a reconciliatory and humbled mood. He hopes to send a message to other leaders that he is consulting and actually doing something.

What about Moi?

Why didn't Moi just refuse to attend this meeting, having been previously humiliated even in public by Kibaki & his handlers?. Because he expects a return of respect with regard to Goldenberg, and other pending issues.

Is Moi genuinely trying to help Kibaki out of this mess?


If Moi bargains with Kibaki and gets all he wants, which I believe could be quite big, he could manage to delay and slow down the momentum of possible immediate ODM onslaught.

My take was that prior to the meeting, Moi's heart as represented by his own son Gideon and his political son Ruto was deeply embedded in ODM.

Don't rule out the possibility that Moi actually went for a fact finding mission, ....precisely to read Kibaki's mind, for the benefit of ODM.

Moi may have instinctively displayed his political acrobatic skills by conveniently placing himself right in the middle of ODM on one hand and Kibaki on the other, .....whoever offers him future security (including political security for his preferred heir) may get his support.

But knowing Moi for so long, he would not invite the wrath of a betrayed and angry public who right now are overwhelmingly on the ODM side,.....hence I predict Arap Moi would most likely opt to throw support to the ODM side which seems to offer a brighter and more secure future in terms of public and political support. He may not want to jeopardize the rising political careers of his two sons Gideon (biological), and Ruto (political).

unedited.
Job.

[job]

ORANGE DEMOCRATIC MOVEMENT LUMINARIES SIGN UNITY PACT
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By MBOTHU KAMAU

TOP luminaries in the Orange team have signed an agreement barring any of them from entering into any private negotiations or deals with President Mwai Kibaki as he reconstitutes his government, our investigations have revealed.

The leaders sign to what amounted to a Memorandum of Understanding soon after winning the referendum requiring each of them to reject individual negotiations or pacts with either the Head of State, his allies or his agents. They said they would not allow the President to divide the team by elevating some of them and isolating others.

The team agreed that its inclusion in President Kibaki’s post-referendum government must be negotiated, vetted and agreed upon formally. The negotiations, the team resolved, must be all-inclusive while the agreements reached must be in its best interest.

“ The days of entering into small deals in secluded corners are gone. This team is beyond manipulation through small favours and anybody attempting to accomplish his selfish missions through the Orange is highly mistaken”, said a key member of team.

Further, the team resolved that their inclusion in the government to be formed within two weeks must be uniform and inclusive in diversity to reflect the wishes of Kenyans as exemplified by their voting patterns in the plebscite.

The team members agreed that none of them would respond to requests either to join or support the constituted government without the express authority and sanctioning by the other Orange leaders. The leaders said negotiations between the Orange and President Kibaki must be in the spirit of a Memorandum of Understanding and must be extensive and binding.

The top luminaries entered into the agreement after President Kibaki dissolved the cabinet on Wednesday and immediately started to reach out to the Orange leaders to salvage his government after the humiliating defeat at the referendum last Monday.

The Orange team has already challenged the president to go further and dissolve Parliament, following his sacking of the entire cabinet on Wednesday. It has insisted that President Kibaki must establish a government with total legitimacy to govern.

The team has further warned the president against appointing any of its members to his government without consulting the team honestly and widely.

Sources close to the team said it would demand the exclusion in the cabinet of some former ministers whose conduct, arrogance, attitude, insensistivity and alleged involvement in corruption had made the government unpopular.

The Orange is expected to restate its position on the ongoing manoeuvres and its conditions at Uhuru Park this afternoon during a thanksgiving prayer meeting cum rally following its victory in the referendum. By yesterday afternoon, the team was busy finalising plans for the rally expected to be attended by thousands of its supporters.

At today’s rally, the team is also expected to spell out its timetable and programme towards forestalling talks and negotiations to put back the constitutional review process on course. The team will be pushing for a quick reconvening of Parliament to facilitate the formation of a Parliamentary Select Committee to spearhead talks on the review.

Sources yesterday indicated that President Kibaki was trying to reach out to former Roads and Public Works Minister Raila Odinga to convince him to take a top position in the reconstituted government, but lock out other top leaders in the Orange team.

The Orange camp is however said to be uncomfortable with a reconstituted government that includes former Justice and Constitutional Affairs Minister Kiraitu Murungi, his Transport counterpart Dr Chris Murungaru and Amos Kimunya who held the Lands and Housing portfolio.

The team mainly blames the trio and other close allies of President Kibaki for rocking the constitutional review process by frustrating efforts aimed at resolving contentious issues and forming a consensus.

The team has vowed to resist any attempts to pressurise it to enter into any half baked agreements with the president.

Highly placed sources said the President’s inner circle was assessing the consequences of excluding the “rebel” former ministers who effectively catapulted the Orange team to its landmark victory in the referendum.

The Orange ministers who had hitherto been threatened with the sack before the outcome of the referendum include Kalonzo Musyoka, Najib Balala, Professor Anyang Nyong’o, Odinga, Ochillo Ayacko, William ole Ntimama and Lina Jebii Kilimo.

However, the seven ministers handed President Kibaki a resounding defeat at the referendum and he can only sideline them at his own peril. Sources indicated the president’s advisers had already decided against the retention of Vice-President Moody Awori after his disastrous performance in his Funyula constituency and Western Province in general.

[job]

A little humour to it from Barack Muluka's job application [/b]letter;............

By Barrack Muluka

I bring you greetings from the Green Village.

You will recall that when we last met in this fashion, I was gravitating towards Emanyulia, to do what I had to do at the referendum.

I have come back with bags full of greetings, rumours and of course plenty of whispers – like my good old friend, Mr. Whispers who went to be with God in the Hereafter, used to say.

But then, more on the rumours and whispers some other time. Today, I have a very important matter of State to sort out. In point of fact, it is communication with a very important Kenyan – the man who sits in State House himself. I seek your leave to write him a letter, for I hear that there are big openings in Government. I want one of them.

Not knowing how people get big jobs in Government, and flattering myself with the belief that I am more than eminently qualified for a big job that can only be given by a man who writes the letters "CGH" after his signature, I am using this space to apply.

Besides, in the interest of transparency and accountability, it only is useful for the public to know how Joseph the Dreamer of Dreams got into a big job. And so I am openly writing so long a letter to the Big Man in State House.

"Sir, please accept this, my humble letter of application for a big job in Government. I have been most impressed by your gallant move to sack all those pathetic men and women.

They gather around you calling you ‘Sir, sir,’ but mostly tell you lies. I am disgusted that people who say they are ‘honourable’ have caused you so much embarrassment.

They cheated you to be the surrogate father of a stillborn Banana baby that was doomed to go nowhere. I appreciate that you now want to work only with broadminded men and women who can tell you the truth.

I am appreciative, sir, of your attempt to salvage your presidency ahead of 2007. In fact, sir, if you do not do this, you are sure to suffer even greater humiliation when you retire in 2007. I see that you will be going out in more odious fashion than Mr. Moi did three years ago. You remember how we sorted Moi out at Uhuru Park – stones, insults, mud on his ka-Mercedes and all?

To imagine something worse than that!

Sir, my only claim to qualification for my new job is that I do not tell lies, sir. In fact … (I am almost crying) I cannot understand how people . . . (I am now in tears) who swear on holy books to be faithful to others can stoop so low as to tell sweet lies and embarrass you like this! No leader needs such worthless fellows. It is good they have suffered the ignominy of a massive sack.

Of course I appreciate what difficult time you must be going through, sir. For my part, I refuse to be like that foolish man who abused our Lord Jesus, when they were neighbours on the cross. You remember the man who told Jesus to save himself and save him, too? I cannot be like that foolish one.

That is why I want you to remember me in your new paradise. When you sack the remaining Reptiles of State, you can give me that ka-position of Ambassador Muthaura.

Or you can even give me that of that Ka-Mutua who talks in a nursery school voice – that is if you want the Muthaura one to remain with a homeboy.I can begin practising a nursery school voice. But I assure you that I will only use my nursery school voice to tell you the truth all the time.

Sir, people are bad! You know sir; some have even been whispering that you behave like Mr. Tortoise? They are rude!

They have been saying that one day, long ago, all the birds were invited to the sky for a feast. They say the birds were very excited and began to prepare.

Tortoise saw all the preparations and soon found out what they were all about. He asked if he could travel with them. But the birds refused.

They said that Tortoise was cunning and unreliable. Besides, he used to tell people that trying to go to a feast in the skies was like cutting the mugumo tree with a razor blade.

Eh! Felling the great mugumo with a razor! Anyway, Tortoise had a sweet tongue. He finally persuaded the birds that he was a changed man. And so they allowed him to come along.

They each gave him a feather with which to make two wings. When the great day came and it was party time in the sky, Tortoise devised tricks to make him the only one to eat and drink at the feast.

This was not funny.

They say that the birds were very furious with Tortoise for eating and drinking everything alone. They decided to fly away, but not before taking back their feathers, each.

At last Tortoise was left there alone – not knowing how to go down without getting hurt. And of course he knew all about Newton’s Law of Gravity, although Isaac Newton was not yet born.

Imagine sir, such are the cruel things they are whispering about you. Me, I don’t like whispers, sir. That is why I have been telling you the truth in this column every week.

But I know you have no time for guys like me, sir. Otherwise how would you be in the present crises? I know that unlike the good Lord, you placed yourself on this cross, anyway.

For indeed, how could you surround yourself with aggressive and blustery homeboys (there was also a ka-home girl) who specialised in swaggering and strutting around a small part of the country, calling people names and generally behaving very badly?

Please sir, have you heard whispers that Kenyans will never vote your guys to that Big House along State House Road again, ati until the year 2425 – when Tortoise will have grown wings and feathers?

They say bad things! That you call people ‘pumbavu’. Me I don’t know whether this is true or not. Anyway, me I know that you put yourself on this cross and that you can save yourself.

Please, sir, I have run out of paper. Will you remember my name, sir?

I belong to the self-styled order of the Village Buffalo (Imboko eya Ingoo).

Thank you, sir." [/i]

[miguna]

Daktari:

Good stuff. Do you remember what Moi told Michuki and Karume just days before the poll? He reportedly told them: "Eh? This referenda tsunami thing is out of my control. Those kinds do not listen to me anymore. This thing has acquired a life of its own."

Then followed denials and more denials. And now this...............................


UJI ENJOYYYYYYYYY

The following persons are safe after Saturday's tsunami - Raila, Balala,
Kalonzo, Ochilo, Prof Nyongo, Ntimama, Musalia, Ruto, Jebii Kilimo

An appeal is being sent out for the following persons who are feared
dead or could have survived the Tsunami but with serious injuries. The
last time they were heard and their final words are as follows;

Mwai Kibaki - Operating like osama - his whereabouts is not known. He
had called the victims of Tsunami kumbafu for not having read the
warnings

Prof George - Maasai bandia has not shed his ancestors behaviors. He
made the choice

Kiraitu Murungi - Last seen in Meru Central shaking corners of Imenti
and eating banana from the side of his mouth

Mungatana - The croc (mamba) must have been swept into deeper waters.

Charity Ngilu - Last seen in statehouse looking for more relief food to
survive on during and after Tsunami

Kalembe Ndile - Last seen on Mombasa highway either looking for a lift
out or hijacking motorist before the tsunami trike

Moody Awori - Last seen in funyula in a Khaki short but is unlikely to
have escaped tsunami.

Norman Nyaga - His whereabouts are not known

Simeon Nyachae - Dropped a note to Kivuitu to asure everyone he was
still alive but whereabouts unknown

Maina Kamanda - Last seen organising a banana meeting at Uhuru Park

Raphael Tuju - Last seen in statehouse asking for the airport
expansion from where he would escape the tsunami

Murungaru - His escape was doubtfull since he had no passports. He is
probably dead by now.

Mwenje - Most unfortunate. He had earlier accompanied Ndolo to safety
but changed his mind and went back and was swept

Karume - Last seen with a Mungiki elder seeking prayers to his
ancestors

Lets all come to Uhuru Park this Saturday to remember these victims

[miguna]

Watch this space and on KT on Sunday!

[miguna]

Another gem.......................

Using the same strategy to win a similar battle

Story by SUNDAY NATION Writer
Publication Date: 11/27/2005

During the heated referendum campaigns, Raila Odinga liked to quip to colleagues that if former President Daniel arap Moi's 2002 presidential "project" got scuttled, doing the same to President Kibaki over the referendum project was much easier.

As a matter of fact, Mr Kibaki has repeated Mr Moi's miscalculation. The latter underrated the blistering rebellion against his preferred choice of successor – Uhuru Kenyatta – right up to when it was too late. He also underrated Mr Odinga's capacity to rally the anti-Kanu forces.

It is doubtful the initial discontent within Kanu with Mr Moi's choice would have escalated into a full-blown rebellion if Mr Odinga had not taken matters into his hands, to the extent of even coining the name Rainbow. In fact, his fellow Rainbow travellers – Prof George Saitoti, Kalonzo Musyoka and Musalia Mudavadi – looked very hesitant at first to battle with Mr Moi.

Prof Saitoti had to be goaded by his kinsman – William ole Ntimama – to stake his claim on the succession, while Mr Musyoka seemed to be of the view that Mr Moi would change his mind such that he ended up waiting too long to resign from the government after he realised Mr Moi was serious with his choice of Mr Kenyatta. As for Mr Mudavadi, he was soon cajoled back to Kanu.

Mr Odinga, of course, had reason to be bitter after Mr Moi had led him through the nose, via the Kanu-NDP merger, and made him believe he was going to be made the former President's heir. Likewise, Mr Odinga has not bothered to hide his anger with President Kibaki's abrogation of the 2002 MoU.

Mr Odinga's modus operandi is something that President Kibaki did not seem to have taken much into account. It was Mr Odinga who prompted the Rainbow to back Kibaki in 2002 (despite having earlier signed another MoU with Ford-People's Simeon Nyachae) because he correctly calculated that the only way to doom Mr Kenyatta's chances among the Kikuyu was to front a credible Kikuyu counter-weight.

A parallel dangling of an ethnic carrot was again at work in Ukambani in the referendum fight, propelled along by the unspoken promise that Mr Odinga would back Mr Musyoka into becoming the Orange presidential candidate in 2007. Despite waging a relentless campaign in Ukambani, the Banana side was up against a wall.

President Kibaki is known to appreciate the role Mr Odinga played in his 2002 election, but he seems not to have grasped the bigger factor at play.

By the time Kenyans went to vote, it was no longer an issue of Mr Kibaki’s popularity per se but the sum of the huge anti-Kanu dissent the Rainbow and others had unleashed. This time round, there was no doubt the vote was directed against his government.

With the kind of passions riding on the Banana in Central province, it would have been a pure miracle for Mr Uhuru Kenyatta to deliver victory for the Orange. But the fact of the matter is that he gave a good account with regard to his Gatundu South constituency (11,032 for No against 19,848 Yes votes). Indeed, Gatundu South registered the highest number of No votes in the entire Central province.

But far from being a "loser," Mr Kenyatta may have gained potentially greater mileage by standing his ground alongside the winning side.

And, contrary to the assertion of his admirers, President Kibaki has turned out to be a poor student of Mzee Jomo Kenyatta. When the latter faced opposition from Jaramogi Oginga Odinga, he ruthlessly moved to isolate KPU and confine it largely to Nyanza.

This time the tables have been turned against President Kibaki's own region. Mr Kenyatta has adroitly avoided that trap.

[roughrider]

It’s really amusing to read what you people think about the politics that are going on in Kenya.

I was particularly tickled when some dude opined somewhere Stanley Githunguri bankrolled the ODM and then claimed further that they (he and Njonjo) are in fact Moi’s stooges. It is surprising how far bar talk can go…

Here are my thoughts:

Miguna: The excellent legal arguments notwithstanding, this is a political battle that will be won on the political stage. I think it is dangerous, irresponsible and highly irregular for a president to dismiss cabinet and parliament simultaneously. It borders on dictatorship. But one would be hard put to prove illegality.

Job: Your speculation with regard to Moi and his meeting with Kibaki are in my view, way off mark in some ways. But we can get to that later.

[miguna]

Roughrider:

Thanks. I concur. However, I hope that you have noticed my use of the term "UNLAWFUL." I never said "illegal." There is a fine difference.

Finally, yes, it is a "political" batter. However, it is also very much a constitutional battle. And "constitutional" battles, are also partly "kegal" ones. Politics and law is very difficult to seperate, especially on these matters. But your point is well taken..

Peace [unedited]