Rose Mwebaza, Senior Legal Advisor, ESP, Nairobi, The bubble has burst. Kenya’s government of national unity is about to unravel. The ongoing power play between the two principles concerning the power to suspend and or dismiss ministers may yet be the kick of the dying horse that is the coalition government in Kenya.
The question at the centre of the latest power struggle between President Mwai Kibaki and Prime Minister Raila Odinga is the interpretation of Clause 4 of the National Accord and Reconciliation Act 2008, which determines the functions of the Prime Minster. Under this Clause, the Prime Minister is given authority to coordinate and supervise the execution of the functions and affairs of the government of Kenya including the ministries. Clause 4(5) of the Act provides that the removal of any minister nominated by a parliamentary party of the coalition shall be made only after prior consultation and concurrence in writing with the leader of that party.
The question at the centre of this controversy therefore is whether the Prime Minister overstepped his mandate in temporarily suspending William Ruto, the Minister of Agriculture and Samuel Ongeri, Minster for Education, to pave way for investigation on corruption in their respective ministries.
The National Accord and Reconciliation Act clearly spells out the fact that the Prime Minister cannot without concurrence in writing of the President remove a minister. However, does that include asking ministers to step down temporarily to allow investigations on corruption to take place? Would that be an act considered to be outside his mandate, which includes supervising government ministries?
The answer to this question lies not in the letter but spirit of the National Accord and Reconciliation Act 2008.
The preamble to the Act states that it is intended to give effect to the Agreement on the Principles of Partnership of the Coalition Government, to foster national accord and reconciliation among other things. The spirit of the accord is therefore to be found in the power sharing agreement between the Party of National Unity (PNU) represented by President Kibaki and the Orange Democratic Movement (ODM) represented by Prime Minister Odinga. According to the Partnership Agreement that led to the creation of the Coalition government, there was concurrence between the two parties represented by their respective principles to set aside their individual interests and move the country in a new direction. This new direction according to the Agreement on the Principles of Partnership of the Coalition Government include; looking beyond partisan considerations to promote the greater interests of the nation as a whole.
The issues at the centre of the controversy should therefore be whether both the Prime Minister and President are acting within the spirit of the National Accord and Reconciliation Act of 2008 as contained in the Agreement on the Principles of Partnership of the Coalition Government. Was it ever envisaged that the Prime Minister’s supervisory role over ministers as created in the Accord would include heaving the power to discipline them through such actions as temporary suspensions? How was the Prime Minister ever expected to supervise ministers he cannot discipline or at the very least reprimand? Is it really a lack of clarity in the law as has been alleged or is it a failure of the principles to live up to the spirit of the Accord? Was there any intention ever by the two principles to live up to the Accord or was it a superficial agreement that was sold to the people of Kenya and the rest of the world? Will the call to bring back Kofi Annan, the principal broker of the accord, serve any greater purpose if the principals are not committed to the Accord? All these are questions that need to be answered if the coalition government is not to loose face completely.
It is also worth noting that the problems of the coalition government in Kenya further highlight the inadequacies of power sharing agreements and the challenges they pose in their implementation on the African continent. Do power sharing arrangements such as the one for the Kenyan coalition government really serve any meaningful purpose beyond creating positions of power to placate and reward warring political opponents? Can power-sharing agreements really lead to the creation of a function government that can deliver peace and development for the people? The lessons from the Kenyan experience would suggest otherwise and point to the grim reality that what Kenya has, like all other African governments in similar power sharing arrangements is a farce that can unravel at any time at the cost and peril of the ordinary people.