Interpreting the Accord is more than semantics

By Waikwa Wanyoike

The political environment in which the National Accord and Reconciliation Act 2008 was enacted and implemented last year unfortunately meant there was insufficient time, or perhaps insufficient motivation, to provide a substantive interpretation of the Accord.

The urgent need to end the violence dictated a speedy resolution, so the misgivings voiced by some people were cast aside. A year later, the result of this solution-driven haste is there for all to see.

The core issue concerns the balance of power between the coalition partners – in particular, the extent of the Prime Minister’s powers, and whether power-sharing goes beyond the Cabinet make-up to include senior Government officers, until now appointed by the President.

Finding solutions to these points of contention provides new impetus for interpretation of the Accord, at least as a first step in trying to resolve disputes between the coalition partners.

A universally acceptable interpretation of the Accord might seem unlikely, given the partisan interests and deep-seated suspicions defining the coalition.

But the Accord is entrenched in the Constitution. And examination of the circumstances, language and result of the Accord in light of simple rules of constitutional interpretation shows us that we can find a reasonable and viable working interpretation.

There is nothing overly complex about constitutional interpretation. The principles are largely based on common sense. To that extent, reasonable constitutional interpretation is not the preserve of lawyers but can as well be appreciated by the minds of reasonable people.

The most important principles of constitutional interpretation are the words, context, subject matter and spirit of the law, and the reason for its enactment.

In interpreting the Accord, all these principles are important, the more so because the Accord contains no definitions of its important operating words and phrases — something that might otherwise have helped prevent controversy.

Contentious issues

One of the contentious issues is whether the power sharing in the Accord refers only to Cabinet positions, or whether it includes appointments to other senior bureaucratic positions.

In resolving this, we must consider the fact that the Accord separately uses both the word ‘Government’ and the word ‘Cabinet’, and that these two words have different meanings.

For example, in Section 4(1)(a) of the Accord, which provides for the powers of the Prime Minister, it is stated in part that, "The Prime Minister … shall have authority to co-ordinate and supervise the execution of the government, including those of ministries."

The wording of this section firmly implies ‘Government’ is more than just the Cabinet, because it says "government, including … ministries".

It is also instructive that the drafters of the Accord used the word ‘ministries’ and not the term ‘minister’. A ministry includes at least a minister, assistant minister(s), a permanent secretary, an undersecretary, various departmental staff and others.

Then in Section 5, the Accord also says: "The Cabinet shall consist of the President, the Vice-President, the Prime Minister, the two Deputy Prime Ministers and other Ministers" — thereby making a distinction between the ‘Government’ and the ‘Cabinet’.

Perhaps even more important is the basic term ‘Coalition Government’. The Accord has never been said to create a coalition Cabinet. To argue that power sharing only relates to sharing of Cabinet posts bastardises the whole negotiation and enactment of the Accord.

In view of the foregoing arguments on the interpretation of Section 4(1)(a) and the wording of Section 5, it is clear that the Cabinet is but a segment of the Government. And from all of this, it is clear the Accord gives significant powers to the Prime Minister, and in all realms of the Government, not just the Cabinet.

Paragraph three of Section 4 of the Accord states that "The composition of the Coalition Government shall at all times reflect the relative parliamentary strength of the respective parties and shall at all times take into account the principle of portfolio balance."

It has been argued in some quarters that this section is limited only to the appointment of ministers. However, this proposition collapses under the reasonable constitutional interpretation of the wording of other sections of the Accord, as explained above.

If, in fact, such a narrow interpretation of the term ‘government’ (that is, only ministers) were to be entertained, it would not only contradict basic rules of constitutional interpretation but would also render the contents of the Accord extremely vague. It would mean that the term ‘government’ would have different meanings within the same constitutional instrument, and this would offend a cardinal rule – that a Constitution must be interpreted as being internally coherent.

The spirit of and reason for enacting the Accord are also key to understanding the relevant meaning of the various contentious provisions of the Accord. First, the reason the Accord was enacted was recognition of a need to share power equally between the two competing political groups.

This is clearly captured in the First Schedule of the Accord, where it is stated: "Given the current situation, neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward and begin the healing and reconciliation process."

So it speaks of "real power-sharing" and the Schedule also refers to "partners in Coalition Government". Moreover, Dr Kofi Annan, who should be the foremost authority on the Accord, has consistently defined the nature of the partnership created by the Accord as being that of "equal partners".

In these circumstances, it is fallacious to talk of equality where one partner has power over the functioning of Government and the appointment of all government officials except for half the Cabinet.

In essence, the president and PNU have to yield some ground to the Prime Minister and ODM in order to achieve real equality between coalition partners, and by extension to ensure the proper implementation of the Accord.

The writer is a lawyer based in Toronto, Canada. waikwa@waikwa.com