SECTIONS

By Wahome Thuku and Peter Opiyo

Are presidential aspirants teaming up and enticing other leaders to join them with ‘guarantees’ of accommodation in the next government promising what they can’t give?

If next ministers will not be politicians, and having been barred from running for any other elective seat, what will be on offer apart from the Deputy President’s seat which in fact is reserved by law for the running mate of the winning candidate, for the leaders coming together?

These are the two burning questions preoccupying politicians as they are confronted with ‘applications’ for pre-election pacts, which sound sweet but may leave them disadvantaged in getting what they signed for in case their joint candidate wins.

What presidential aspirants are promising in rallies rekindles memories of National Rainbow Coalition pre-election pact that united Prime law for the running mate of the winning candidate, for the leaders coming together?

These are the two burning questions preoccupying politicians as they are confronted with ‘applications’ for pre-election pacts, which sound sweet but may leave them disadvantaged in getting what they signed for in case their joint candidate wins.

What presidential aspirants are promising in rallies rekindles memories of National Rainbow Coalition pre-election pact that united Prime Minister Raila Odinga’s Liberal Democratic Party and President Kibaki’s National Alliance of Kenya, and which was quickly trashed by Kibaki after 2002 victory.

New laws

Whereas the politicians may mean well in courting pre-election alliances, which the new law recognises, what they could be holding out to potential partners may be impossible to deliver because of constitutional challenges.

Deputy Prime Minister Uhuru Kenyatta, Eldoret North MP, William Ruto, Vice-President Kalonzo Musyoka, and Justice Minister Eugene Wamalwa have assured their supporters they would lead them into coalitions as members of the G7 Alliance.  But each is carrying on with his own campaigns for president on separate parties.

Deputy Prime Minister, Musalia Mudavadi, though not a member of G7 Alliance, from which Kalonzo and Wamalwa appear to be easing off, has also expressed interest in joining the G7 team in some form of pre-election arrangement. 

The reality, however, is alliances and coalitions are now protected and regulated by the law. They are sole discretion of political parties, which have clear provisions on how they must go about it.

Again, contrary to expectations, particularly among individuals trooping around the presidential aspirants, there would be little or nothing for them to dish out after elections.

Several presidential aspirants and key party leaders have been promising supporters they will enter into a form of a coalition with other “likeminded leaders” as a winning strategy. The legal framework has been tightened to secure the country from situations where once in power a coalition begins to break up over leadership wrangles.

Now, with the elections date still set for March 4, next year, political parties have up to December to wind up coalition building.

Section 10(1) of the Political Partiers Act allows two or more parties to form a coalition before or after an election. They must, however, prepare a written agreement on the coalition and deposit it with the Registrar of Political Parties.

No positions

If the agreement is entered into before an election, it must be deposited with the Registrar at least three months before the polls.

It would be therefore highly unlikely that parties will form a coalition after the polls unless it will be necessary to avoid any domination in Parliament. Under the third schedule of the Act, the governing bodies of the parties entering into a coalition must first sanction such agreements.

It must be written and signed by the national officials of the parties and commissioned by a Commissioner of Oaths. The parties must state the policies and objectives of the coalition and its overall organisational structure and management right from the national to the county levels.

The agreement must indicate the governing bodies at the county levels. The parties must outline in their agreement, the criteria or formula for sharing of positions in the coalition structure, sharing funds, roles, and responsibilities.

The agreement will have to spell out the coalition nomination and election rules, decision-making procedures, structures, policy initiation, and consultation. It will have to contain a code of conduct of the coalition, including the values and the principles guiding the performance of the individuals and the member parties, and dispute resolution mechanisms.

Also included are the mechanisms for enforcing sanctions for breach of any of the provisions of the agreement.  Like all other political party disputes, the party’s tribunal shall arbitrate coalition affairs, and the agreements must provide grounds upon which the coalition may be dissolved, including the mechanisms and procedures of doing so. Again, other than one or two figures at the top of the coalition who may secure positions in a government, there is nothing for the rest of party operatives.

According to the Law Society of Kenya (LSK) Chairman Eric Mutua the era of parties forming alliances and cronies swirling around a presidential candidate with intention to reap from such unions is now gone.

“Awarding cronies would not be possible because appointments would be done competitively,” said Mutua. Should a coalition of three parties win in the elections, it is possible that the only beneficiary of a position in government would be the President and his or her deputy.

The Constitution does not create room for other major players in a coalition to earn leadership positions even if their party coalitions win the elections.

Expert view

Outside the elective National Assembly and Senate seats, no other positions shall be open for party leaders.  Cabinet positions will no longer be shared among MPs, but shall be earned through a competitive process supervised by Parliament. The same shall apply to virtually all other top positions in government. Moreover every party or a coalition will have to publish its presidential candidate, running mate, and other possible nominees for Parliament at least three months to the General Election.

Depending on who appears on those lists, the party could pull or push away voters, further complicating any pre-election arrangement. Lawyer Willis Otieno, an expert on electoral matters, says the prospects of those seeking alliances or cronies of a presidential candidate gaining are limited. “The prospects of gain are restricted because Parliament plays a key role in major appointments. Further, if a person running fails to get the presidency it means there would only be the position of Leader of Majority in Parliament, which is dependent on MPs,” said Otieno.

Otieno, the Programmes Officer at the Electoral Institute for Sustainable Democracy in Africa, therefore advises that parties should focus on parliamentary majority, but even then chances of reward to their cronies are limited. For instance, he says there can be a scenario where an alliance can produce majority MPs, but fail to produce the president therefore limiting the benefits.

 “Politics will still be played but subject to limitations of the Constitution because the jobs can’t be guaranteed,” argues Priscilla Nyokabi.

She points out that any of the presidential aspirants can still be nominated by the President for Cabinet positions, should they fail to capture the presidency, but this is dependent of Parliament.