By Gakuu Mathenge
Politicians and lawyers are split over demands by the Commission on Implementation of the Constitution that ministers and MPs give up party positions.
The directive has unsettled politicians as it would deny them the power that comes with being in the top decision-making organs, and access to party finances.
Quite apart from these, the stringent new laws open up parties for scrutiny and accountability.
Politicians have been split on the matter, some urging for compliance, and others arguing against calls to comply with the new constitutional requirement that they resign party positions.
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Citing Article 77(2), CIC chairman, Charles Nyachae, on May 19, wrote to Cabinet ministers informing them they were in breach of the new Constitution by holding on to political party offices.
On Tuesday, Mr Nyachae told a constitutional conference, which President Kibaki and Prime Minister Raila Odinga attended, that the Government and MPs were not supportive.
He cited their resistance to give up either State offices or political party positions.
Raila told Nyachae the matter might have to be referred to the Supreme Court for interpretation, effectively saying he (PM) did not agree with the CIC’s interpretation of the Constitution.
President Kibaki is the PNU leader, but he is yet to comment on the issue.
Three weeks ago, Justice Minister Mutula Kilonzo, who is also ODM-Kenya secretary general, said he was willing to give up his position, "but on condition that other Cabinet ministers holding high party offices also give up theirs".
However, on May 30, Mutula also agreed with PM’s administrative secretary Caroli Omondi’s contention that, "Article 77 (2) is only applicable to ministers after the General Election".
The PNU Secretary General, Kiraitu Murungi, has said he is willing to give up his position and that the party is working on a succession plan (see separate story).
Internal Security Minister, George Saitoti, is the PNU chairman, and also acting Minister for Foreign Affairs.
Other ministers who still hold party positions are Vice-President Kalonzo Musyoka (ODM-Kenya), who is party leader and PNU Alliance deputy leader), Finance Minister Uhuru Kenyatta (Kanu chairman), Musalia Mudavadi (ODM deputy party leader), Water Minister Charity Ngilu (Narc chairperson), Medical Services minister, Anyang’ Nyong’o, (ODM secretary general), and Communications minister Samuel Poghisio (ODM-Kenya chairman), among others.
Ms Ngilu says ministers holding political party positions have not violated the Constitution.
She says Attorney General Amos Wako had correctly interpreted that, Article 77(2) of the Constitution was not meant to apply to the current ministers and assistants since their tenure of office is preserved in the transitional provisions of the new Constitution until after the 2012 General Election.
"The Constitution is clear. We should not play politics with the matter," Ngilu says.
Political parties mostly come alive during elections, as tickets to public officer. The stringent new laws are meant to inject life into political parties as vehicles for nurturing democracy. The decision to have public officers relinquish party positions when taking up office was to ensure parties are not neglected.
But the prospects of ‘founding officials’ or party owners handing over other officials worry politicians, especially in the countdown to the General Election.
It will be interesting to see how politicians adjust to this since elected leaders, and often those in public office, are the most influential in a party.
There is also mistrust since politicians in public office could easily be locked out during party nominations for elective positions.
Party officials have always wielded a lot of power during primaries to the extent nomination certificates were given to favoured losers.
There have also been claims of candidates buying nominations through their financial contribution to the party.
The chairman of Constitution Implementation Oversight Committee, Mohamed Abdikadir, says opposition to resigning party positions is rooted in mistrust.
"Due to many years of disappointment by the Government, Kenyans have developed mistrust of official systems. You will be surprised that in advanced democracies, junior civil servants and officials conduct important processes like elections. There is trust among citizens and rulers. We need to recapture this, for the systems we have created to work," he says.
Party fortunes depend not on systems but on party ‘ownership’ or ‘leadership, for funding and general direction, while the ‘selling’ of nomination tickets generate funds that are rarely accounted for.
But with the advent of public funding for parties, the limit on how much individuals can contribute to a party, and requirements that parties make regular returns to the Auditor and Controller General, this is bound to change.
Centre for Multi-Party Democracy chairman, Justin Muturi, says public funding for political parties comes with accountability.
"Donations by local and foreign sources are made to party leaders, their family members, and allies. Their fortunes depend on the party leader. There is no incentive to invest in party systems, staffing and structures. But now, they are receiving public funding and must open up," he says.
Mr Muturi says the new Constitution has recognised political parties as integral good governance, and stable, accountable parties are essential for democracy.
"We are duty-bound to look up to the best practices elsewhere that are closer to the presidential system of government we have adopted. The closest is the US. President Obama is not the president or party leader of the Democratic Party.
The spirit of the new Constitution favours dispersal of powers," he says.
But analysts say political leaders considering defection without losing face view the CIC directive as godsend. They can cite it as the reason for leaving parties they deem no longer represent their interests.