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Analyse this: The National Accord and Reconciliation Bill, 2008

Written by Kamale T
Wednesday, 05 March 2008
I have been able to see the Bill in the form that was released after the 28th February. This bill in its present format will be a constitutional headache to get through Parliament. More than that, there are fundamental issues in it that raise the possibility of it being rendered illegal by the High Court due to its inconsistency with the current constitution. *Section3 (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 support 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: (2) 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 Assembly. 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. *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 Musyoka, Uhuru Kenyatta, Musikari Kombo and 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 apply 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 Kofi 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 seriously 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! Related Articles: Pro-choice ? My choice ! Rejoicing for Somalia State of Kenya: Kofi Annan to mediate Kenyan Crisis Kenya Tourist Board Statement -video State of Kenya: Saitoti in Naivasha Set as favorite Bookmark Email This Trackback(0) TrackBack URI for this entry Comments (9) Subscribe to this comment's feed Show/Hide comments Your analysis is not absolute written by Isindu Mwanagaza , March 05, 2008 "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." The Legality of the Presidency was in question, let alone the preceding Kofi Anan Mediation team that came on board after the fact to play referee and was subscribed to by both parties with a commitment. Legal precedent was thrown out of the window when by non other than kibaki and to assert that any complaint there in ought to follow that precedent that Kibaki trashed is simply mockery. The current arrangement and intent to compromise on the interim is not a permanent solution. It is, in any event, a foundation to restore the rule of law, a constitution that we all know is necessary if not critical to the survival of Kenya. Section 8. satisfies the assumption that PNU will honor their engagement, of which without, the preceding 7 sections hold little gravity to effectively GUARANTEE a resolution to the impasse. I would prefer to wait out the outcome than speculate on the trajectory and intent of the 8 persons involved in crafting this way forward. report abuse vote down vote up Votes: +0 wuod aketch written by anon , March 06, 2008 Wuod, please see the link below. The BBC is but a mouthpiece for ODM,and will peddle inaccuracies without question. Government spokesman Mutua takes on renown journalist Jeremy Paxman ferociously and I for one am deadly proud of how he has handled the grumpy journalist with a serious case of the God syndrome. Link here report abuse vote down vote up Votes: +0 Reconciliation written by Wuod Aketch , March 11, 2008 What will the national dialogue and Reconciliation team do? Sweep the mungiki crimes under the carpet? State denies BBC report on link to post-election violence On the weekend of January 25, the BBC report says, the Rift Valley towns of Nakuru and Naivasha were the focus of the some of the worst post-election violence. Eyewitnesses spoke of homes belonging to some communities being marked, then gangs with machetes - who they claim were Mungiki - attacked. Sources inside the Mungiki have told the BBC that it was a renegade branch of the outfit that was responsible for violence, not them. A policeman who was on duty at the time, who has spoken to the BBC on condition of anonymity has also pointed to clear signs of State complicity. He alleges that in the hours before the violence in Nakuru, police officers had orders not to stop a convoy of minibus taxis, called "matatus", packed with men when they arrived at police checkpoints. "When we were there... I saw about 12 of them [matatus] packed with men," he said. "There were no females... I could see they were armed. We were ordered not to stop the vehicles, to allow them to go." The allegations come at a time of growing concern that there was pre-planned violence on both sides of the political fence, in the aftermath of Kenya report abuse vote down vote up Votes: +0 ... written by aeichener , March 11, 2008 Anon: as to Mutua, bellowing loudly and spitting out does not make a slave a free man. There is more to it than the cheap resentment, which your posting exudes. And to use your racially loaded juxtaposition: If a mshenzi tells off an obnoxious kaburu in befitting tone, he will still stay a mshenzi. Doesn't make him better. Alexander report abuse vote down vote up Votes: +0 re: BBC written by anon , March 11, 2008 Anon: as to Mutua, bellowing loudly and spitting out does not make a slave a free man. There is more to it than the cheap resentment, which your posting exudes. And to use your racially loaded juxtaposition: If a mshenzi tells off an obnoxious kaburu in befitting tone, he will still stay a mshenzi. Doesn't make him better. Alexander Alexander, If I came across as being racist I apologise, I cannot afford to be given my household is of mixed-race! As for Paxman, a lot of people feel he has a log stuck up his backside, and a lot of them are from his race. What angers me is not him in particular but the BBC itself for its selective journalism. It is an open secret that Mungiki was responsible for the 'revenge' attacks that occurred in Naivasha, but to insinuate that the violence was exclusively a government arrangement is wrong. The BBC is perhaps the only 'reputable' media house in the UK that has not raised the issue with ODM members and Ruto in particular during interviews. They continue to peddle ODM propaganda as the gospel truth and this is why I am pleased that for once the government side is retaliating. Whether or not they were involved is neither here nor there. If you are going to give an insight into post election violence you cannot ignore the opposition factor. As for the piece itself, the eye witness alleges he saw matatus full of men carrying weapons. How can people supposedly being ferried in secret carry their weapons openly? I have no doubt this government is capable of such shenanigans, but I don't believe this biased piece for one minute. report abuse vote down vote up Votes: +0 two things written by Stephen Wanyama , March 11, 2008 Firstly, what is Mungiki. I think we have for far too long been a nation where opinion and rumour are turned into fact by what are the most idiotic and lazy journalists on earth. Is a group of Kikuyu men who have taken an oath to commit acts of violence Mungiki? Is a group of Kikuyu men who are poor and angry and oathing Mungiki? Are any youths who extort money from matatu drivers Mungiki? Are all GEMA vigilantes Mungiki? I repeat again, these are not in any sense an effort at nit-picking. The Kenya Police, the Government, Civil Society, and most of us, even here, have taken rather lazily to reaching these conclusions. I have seen no evidence that the perps of the Naivasha attacks or the occupants of the cars Allen speaks of in her report, were Mungiki. They were male, Kikuyu, perhaps had taken oaths but how do we know they were Mungiki? What shows Allen's story to be contrived is the State House connection. I mean even if the government was funding and financing this operation, I cannot for the life of me see any reason why they would want to involve the Presidency! I mean the very basic rule in any crime, is to ensure the boss knows nothing, or even if he knows that he cannot be linked to it. I cannot see why the meeting could not have been held at a club, in a private house (even Kibaki's Muthaiga residence) or even over the phone. I mean State House really is the very last place such a meeting could have been held. The BBC has shown what Prunier in a previous article and many others in the West have exhibited with great delight, blinding ignorance of Kenya and a knee-jerk desire to aid the fascist. Kamale, I was very sad about the agreement, until I realised it really did not say anything radical. The question now is what happens when the ODM realises what it signed. Some have suggested that the intelligence of the ODM negotiators and principal when compared the those of our team are the deciding factor in these negotiations. Remember though that their stones, their knives and their cudgels are always larger. report abuse vote down vote up Votes: +0 ... written by Njau Ndirangu , March 11, 2008 NOV 2007 BBC had raised issue with the government ruthless dealing with Mungiki as reported here. Now I find it ironic BBC insinuating Mungiki and the government are bedfellows. Which is which jamani? report abuse vote down vote up Votes: +0 MUNGIKI MENACE written by Tarus Micah , March 12, 2008 (Please make a clear and consistent argument. Ed.) report abuse vote down vote up Votes: +0 I DONT FEEL LIKE A KENYAN ANYM written by JOHN KENNEDY , April 29, 2008 what are these talks abouts mungiki and the rift valley.does it realy matter?when will we finally realise that the fate of our country is on the balance?when we are through butchering each other with no one left to kill?or is it when our precious country is left desolate with birds of prey having a field day on our decomposing bodies?fellows,lets think outside the box for once.what are we realy fighting for?i can undersatand why the mau mau went to the forest and fought the white man.it was a fight worth the deaths that occured and i am proud of them.but for the so called,riftvalley worrious and the mungiki,u are a shame.you have created a history that we will always be embaraced about.I AM KENYAN I LOVE KENYA.ITS DESTINY IS MY PRESENT CONCERN.GOD BLESS KENYA. report abuse vote down vote up Votes: +0 Show/Hide comment form Write comment Name Email Title Comment smaller \| bigger Subscribe via email (Registered users only) I have read and agree to the Terms of Usage. 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