Accord: Is the nation sitting on a time bomb?

By Oscar Obonyo

Kenya entered the second year of tumultuous reign of the Grand Coalition Government last week, with a fear hardly acknowledged in public, especially by politicians. It is anchored onto the fear of the unknown. Behind the scenes it is acknowledged as a political time bomb the country is literally sitting on.

It is the prospect of the National Accord dying because of a vacancy in the president’s office and the execution of the unaltered constitutional requirement that the Vice-President (currently Mr Kalonzo Musyoka) will take over for 90 days.

"If there is no Vice-President, or if the Vice-President considers he is for any reason unable to discharge the functions of the Office of President, by such Minister as may be appointed by the Cabinet," states article 2(b).

The silence on the place of the PM, who constitutionally appoints half the Cabinet ministers who can’t be fired by the president without his written consent, as well as the polarised nature of the coalition, could compound matters. Without a polls body, voters’ register, new constitution to correct the anomalies of the 2007 chaotic elections, and a legal agreement on how to handle suspected perpetuators of the bloody post-election violence, Kenya stares at an uncertain and dreadful future.

Political crisis

Were the office of the president to fall vacant for reasons outlined in the Constitution – death, resignation or mental incapacitation of the current holder – Kenya could face a serious political crisis. It could present a potentially explosive season as last year’s. "We are in deep trouble as a country because if anything were to happen today, no election can be executed. We do not have an electoral body to oversee polls. We do not even have voters," reacted PNU vice- chairman in charge of elections and legal affairs George Nyamweya.

The Nominated MP expressed regret Parliament acted "recklessly" in kicking out the Electoral Commission without a clear and fast replacement and nullification of the voter register. The comprehensive constitutional review that was to follow took long to take off, and even when it did, signs were it would not be easy to achieve, given the differences among those supposed to deliver it.

Rising cynicism

Whereas President Kibaki and Prime Minister Raila Odinga bound themselves in the National Accord to deliver a new constitution, the rising cynicism against their union at the lower ranks of their parties could frustrate the process. This could be in the same way they failed though they tried to rally Parliament behind a local special tribunal to handle post-election crimes.

A vacancy at the top would mean the death of the coalition, says lawyer Paul Muite, former Kabete MP. "But do not forget Kibaki took an Oath as President, so if Raila pulls out of Government Kibaki will reconstitute Government and proceed, but not the other way round," he added.

"If the position falls vacant by way of resignation, ill health or death, Kalonzo automatically becomes President for 90 days, unless of course he chickens out," Muite added. That is what happened in 1978 – during the one-party rule - when President Kenyatta died and his principal assistant, Daniel arap Moi was immediately sworn-in.

Were the office to fall vacant, there are those who believe the National Accord and Reconciliation Act 2008 could complicate the situation.

"Such an occurrence would present a major problem, not just for ODM but even in PNU. A situation where a candidate who scored less than eight per cent of the popular vote assumes the role of acting President as opposed to a candidate who garnered 45 per cent of the vote would definitely not sit well with many," argued ODM Parliamentary Group Secretary, Ababu Namwamba.

Lawyers polled by The Standard on Sunday agree if such a scenario played out, it would present a political conflict. They opine it would not create a constitutional crisis. "While the National Accord was created to accommodate the office of PM, it did not alter any articles relating to the VP’s office or succession of the President. And even as we (ODM) negotiated, Kalonzo (Musyoka) was already in office as VP and was never part of the Accord," observes Namwamba.

Ascendancy to presidency

With the enactment of the Accord, which recognises only two key players, PNU and ODM, some would argue ODM would resist the ascendancy to the presidency by a politician from ODM-Kenya, which is in the coalition by "invitation". Either way, in the absence of reforms as suggested by the commissions led by South African retired Judge Johann Kriegler and Appellate Judge Philip Waki, the ‘vacuum’ could precipitate a crisis.

And despite Kriegler’s terse warning that if the causes of the post-election violence are not tackled and resolved, "what the country witnessed this year would look like child play come 2012", the political class is still pre-occupied with supremacy contests. We (politicians) have failed to see the danger ahead and have been doing all things emotionally and with anger, to the extent where we have turned Parliament into an employment agency," said Nyamweya.

The MP believes vested interests in the formation of a new electoral body has slowed the review. It was ill advised, he argues, for MPs to come up with a bloated committee of 27 people to identify nine commissioners.

"The best way would have been to let the two principals name individuals, as it happens in the US and the West, and then let Parliament endorse the nominees. We might wait longer to have the electoral body in place," he says. Outside the review there is suspicion and unease in the coalition, a situation exacerbated by the credibility crisis the Government faces due to cases of extra judicial killings, rising national cynicism, and public anger over official corruption. The international community is also increasingly getting impatient.

The Standard on Sunday has reliably established a phone text message sent to ODM ministers now doing rounds among party MPs could be responsible for the party’s latest demand. It advises them that, "unless the party precipitates a major crisis by walking out on (President) Kibaki, all ODM complaints will come to naught!"

 

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