Why MPs can't amend National Accord

By Stephen Makabila

There have been calls to amend the National Accord, ostensibly, to settle political scores by some MPs.

But can the Accord signed on February 28, 2008, to pave way for the Grand Coalition Government, be adulterated through amendments?

Legal experts warn Parliament cannot amend the Accord signed between President Kibaki and Prime Minister Raila Odinga.

The interpretation is a setback to some ODM MPs allied to Eldoret North MP William Ruto, scheming to join forces with PNU and topple Raila from the position of Prime Minister.

Lawyers say the ‘rebels’ could only start by displacing Raila as party leader through a National Delegates Conference (NDC), which may be a tall order.

"But even if the Ruto group replaces Raila as party leader, it is Raila who signed the National Accord with President Kibaki. The Accord was to deal with a specifc situation and it is not a treaty to be renegotiated," says lawyer Haron Ndubi.

He adds: "An Accord is an agreement between two people, to change it, you need to go to the situation in which it was signed and that means going back to the 2008 situation."

Ndubi also argues the Accord was part of the new Constitution and may require a two-thirds majority in Parliament.

Party leader

East African Law Society Vice-President James Mwamu concurs, arguing the National Accord cannot be amended.

"We cannot amend the National Accord because it was not created by an Act of Parliament. The Accord is an agreement between Kibaki and Raila," he says.

Mr Mwamu also says to remove Raila, Ruto has to convene an ODM NDC and be ratified as the party leader.

"Becoming the party leader is the furthest Ruto can go because he did not sign the National Accord. Such a move would bring a constitutional crisis because some people may question whether the person acting as the party leader is the one who signed the National Accord," he adds.

Ruto, former Higher Education minister, who faces a fraud charge in the High Court, feels he controls more than 50 per cent of ODM MPs.

But some MPs, elders and clerics from Nyanza have warned him to stop antagonising Kenyan communities, while advancing his personal political schemes.

"The Coalition Government is a negotiated settlement with strict terms. If anybody wants to create confusion, we are ready for elections," said Assistant Minister Ayiecho Olweny.

Raila has also hit out at the MPs plotting to oust him, saying their plans to bring him down politically were bound to fail.

"I am not scared of any schemes to finish me politically. Plans to oust me is a small thing that need not to worry anybody," he added.

PNU has also been toying with the idea of pulling out of the coalition to allow President Kibaki form Government of National Unity.

Full term

Last week, PNU threatened to withdraw from the Grand Coalition, citing endless wrangles.

Kigumo MP Jamleck Kamau, Ndaragwa’s Jeremiah Kioni and Laikipia’s Nderitu Murithi said the controversy over nominations to key judicial jobs had forced PNU to reach such a radical decision.

They maintained PNU and its affiliates are consulting ahead of a planned pullout from the governing coalition.

But Raila has since laughed off the move and assured Kenyans the coalition government will run its full term.

Lawyers have also cautioned against any attempt to abort the Grand Coalition Government.

They say the coalition has to withstand the unhappy political marriage for the next 18 months for the country’s stability and reform process.

Senior counsel Paul Muite said PNU and ODM have to stop ‘political posturing’ because the country is not in a position to hold elections and there is no provision for formation of a ‘government of national unity’.

"We are yet to implement the Constitution, a new Electoral and Boundaries Commission is not in place, harmonisation of local authorities and counties is still pending," Mr Muite told The Standard On Sunday.