The options in bringing coalition government to an end

By Oscar Obonyo

Three years on, the forced political marriage between President Kibaki’s Party of National Unity and Prime Minister Raila Odinga’s Orange Democratic Movement has doubtlessly become unbearable, as the partners scheme to elbow out each other.

As in the marriage parlance, Kibaki and Raila are sticking in the union purely "for the sake of the children". Their children, in this instance, are the general public, and in particular parliamentary allies, most of who are not keen at losing their well-paying jobs.

This notwithstanding, the heat in the political kitchen that is the Grand Coalition Government is intolerable to some. And to evade the situation, PNU and ODM brigades have hatched legal plots to vanquish one another.

The Standard On Sunday, with the help of two distinguished law experts, Senior Counsel Gibson Kamau Kuria and Gerald Akhaabi, who is also MP of the East Africa Legislative Assembly, examines some of the possible scenarios and their implications as PNU plans a National Delegates Conference where the issue of pulling out of the coalition would be discussed.

SCENARIO ONE: PNU pulls out of Government

The National Accord and Reconciliation Act 2008, gives room for either party to withdraw from the Coalition Government following endorsement by its top decision organ. If PNU aptly fulfils this constitutional requirement, both Kamau and Akhaabi are in agreement that Government will cease to exist. But the two lawyers differ on the consequences:

"At the time of signing the deal, there was a constitution and a Government in place. If the coalition collapses, we shall revert to the old order and the President will continue with his term to the end, says Kamau pointing out that President Kibaki signed the peace deal on behalf of Government and PNU.

"The Accord supersedes any other previous legal arrangement. The Accord ushered in this Government and it is not a government of one party but two under two principals," argues Akhaabi.

What the law says

Section 6 of the Accord: "The coalition shall stand dissolved if (c) one coalition partner withdraws from the coalition by a resolution of the highest decision-making organ of that party in writing."

　

SCENARIO TWO: ODM pulls out of Government

A self-exit of the Orange is the easiest and surest way of the clearest end of the coalition. Legal experts are in agreement that consequences of such a decision by ODM will accord President Kibaki’s PNU to stay in power for the remaining period of the Tenth Parliament. That, perhaps, explains PNU’s initial efforts to frustrate the PM out of Government, although Akhaabi maintains the exit of either party amounts to the collapse of Government.

What the law says

"The persons occupying the offices of President and Prime Minister immediately before the effective date shall continue to serve as President and Prime Minister respectively, in accordance with the former Constitution and the National Accord and Reconciliation Act 2008," Sixth Schedule, Transitional provisions, subsection 12.

　

SCENARIO THREE: Parliament
passes vote of no confidence in PM

This latest card being flashed by PNU-allied legislators and ODM rebel MPs is practically easy to execute as it requires a simple majority. But the biggest challenge lies in replacing Raila. The same Accord gives provisions of who qualifies to be PM, including being leader of majority parliamentary party. Ideally, Parliament can vote out Raila as PM, but ODM can still nominate him for the seat.

"The situation can only change if (William) Ruto or (Musalia) Mudavadi influences ODM not to nominate him or the seat could go to PNU or any other party that acquires status of majority midway the parliamentary term," says Kamau. But such majority is acquired through a parliamentary election.

What law says

"The person to be appointed a Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of a) the political party which has the largest number of members in the National Assembly."

Subsection 3(2) of the Accord and.

"The office of the Prime Minister shall become vacant only if b) the National Assembly passes a resolution which is supported by a majority of all members of the National Assembly," subsection 4 of the Accord.

SCENARIO FOUR: If President is indisposed or unable to discharge duties

President Kibaki is the one man who can bring the life of the coalition to an end, explains Akhaabi.

"In the unlikely event that the PNU leader gets indisposed and is unable to discharge his duties, or the office falls vacant due to natural causes or otherwise, Kenyans will go to the polls, the first under the new Constitution," he says.

Section 12 of the transition process clearly stipulates that the Vice-President, as in the old constitution, shall act as President for 90 days before election of a new President. The new Constitution does not give room for an election under such circumstances as the President’s principal assistant takes over as President for the rest of the term.

"In our case, at the moment, Kalonzo cannot take over because the Constitution talks of a deputy President, a position that is not in force yet," explains Akhaabi.

This means the elected President, whether from the Orange party or PNU, shall proceed to govern alongside Raila as under the same PNU-ODM coalition arrangement for the rest of the life of the Tenth Parliament.

What Law says

"When a vacancy occurs in the Office of President a) the Deputy President shall assume office as President for remainder of the term of the President," Article 146.

　

SCENARIO FIVE: Amendments brought to the National Accord

Some politicians have also toyed with the idea of amending the Constitution, with a view to fixing their opponents, a move experts dismiss as sheer political posturing. They say it is a tall order that would pose myriad legal challenges, including whether Parliament can solely handle the matter or such amendments require a referendum.

"The Accord was enacted to deal with a specific unique problem and many will question the wisdom of amending the act even before fully implementing the new Constitution," says Kamau.

"It is not easy because the Accord is both embedded in the old and new Constitution and besides, the threshold of making amendments is enormous," adds Akhaabi.

What law says

"A Bill to amend this Constitution a) may be introduced in either House of Parliament... An amendment to this Constitution may (also) be proposed by a popular initiative signed by at least one million registered voters," Articles 256 and 257 of the Constitution.

SCENARIO SIX: The principals agree to end the political union

This is the shortest way, with less legal impediments, of ending the coalition and forcing a premature election. The only requirement, would be for the President and PM to host separate meetings of their parties’ top organs, and persuade members to officially endorse a pull out from Government.

But the repercussions are major, considering that the country is not ready yet for elections. The implementation of the new Constitution is slow owing to tussles over membership of various committees, not to mention the conflict over the creation of 80 new constituencies.

What law says

"The coalition shall stand dissolved if a) the Tenth Parliament is dissolved; or the coalition parties agree in writing," Subsection 6 of the Accord.