Nasa principals, from left, Musalia Mudavadi, Raila Odinga, Isaac Ruto,
Kalonzo Musyoka and Moses Wetang'ula at Bomas of Kenya on April 20,
2017. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP
The National Super Alliance’s new top positions, as established
in a power sharing agreement deposited with the Registrar of Political
Parties last week, will not require amendments to the Constitution,
lawyers who drafted the coalition document have argued.
But
State House is saying the opposite, warning that Kenyans might be
forced to spend billions of shillings on constitutional amendments
should the Opposition, it it wins the next elections, go ahead with
plans to create a new office of Premier Cabinet Secretary and two
deputising functions.
Drafters of the coalition
agreement, while defending its spirit and constitutionality, argue that
the new positions are in line with the supreme law of the land, and
hence there would be no need for the lengthy process of changing the law
to create the slots.
They will, however, depend on the
goodwill of the Opposition’s flagbearer Raila Odinga to create the
positions as stated in the agreement.
CONSTITUTIONAL AMENDMENTS
“The
positions will not need constitutional amendments nor are they
unconstitutional since it will be the prerogative of the President to
structure and organise his government,” the lawyers state in an advisory
to Nasa principals.
In the deal, which brings together
ODM’s Odinga, Wiper Party’s Kalonzo Musyoka, Amani National Congress’
Musalia Mudavadi, Ford Kenya’s Moses Wetang’ula, and Governor Isaac Ruto
of Chama Cha Mapinduzi, the drafters relied heavily on Articles 131,
132 and 152 of the Constitution, which specify the powers and functions
of the President.
Apart
from the president and the deputy’s slot — the latter which goes to Mr
Musyoka — the opposition coalition has proposed the positions of Premier
Cabinet Secretary to Mr Mudavadi, who will be deputised by Mr
Wetang’ula and Mr Ruto.
The deal provides that, upon
winning the elections and taking office, Mr Odinga will be required to
use his powers to create room for his co-principals in a new government
structure they describe as the “horizontal sharing of power”.
APPOINT CABINET SECRETARIES
“Article 152 contains a power vested in the President to establish, structure, and organise a Cabinet,” the lawyers state.
While
Article 152 is basically about the size of Cabinet that a president can
create, the powers to establish it are laid out in Article 132(a).
“Article
132 sets out how to realise the assistance of the Deputy President and
the Cabinet Secretaries by vesting in the President the power to appoint
the Cabinet Secretaries and other executive officers as set out in
Article 132 (2) (a) – (e),” they state in the deal.
To
avoid any possible squabbles that may arise if the President fails to
establish the positions, the coalition agreement requires that once Nasa
wins the elections, all decisions will be made in consultation with the
co-principals.
“The (coalition) agreement ties the
President, in forming government, to consult and have the concurrence of
partners (co-principals)” the advisory states.
POWER SHARING
This,
perhaps, explains the reason Mr Odinga on Thursday dwelt on their mode
of power sharing, stating that it was a collegiate leadership in which
he will be “the first among equals”.
The second step, which they argue the Jubilee administration is using to question the practicality of creating the new positions, will be to streamline the government to be in line with the Bomas Draft Constitution, which will require amendments to the supreme law. This will take between one and three years.
The second step, which they argue the Jubilee administration is using to question the practicality of creating the new positions, will be to streamline the government to be in line with the Bomas Draft Constitution, which will require amendments to the supreme law. This will take between one and three years.
In an addendum to the agreement, they state:
“The Coalition Parties undertake to initiate amendments to the
Constitution to bring the structure of government in line with the Bomas
Draft constitution.”
Both President Uhuru Kenyatta and
his deputy William Ruto have rubbished Nasa’s power sharing agreement,
arguing that it creates non-existent positions which may not be
established.
On Sunday, Ruto claimed that Mr Odinga
should not be trusted by his colleagues to establish the positions as he
is only guided by selfish interest.
NO AGENDA
“It
is now clear to all that this is one person who is selfish and would
only want to do things that will only benefit him,” said the Deputy
President in Narok. “He wants to cheat people that he is leading them to
Nasa, which has no agenda for this country.”
In State
House, spokesman Manoah Esipisu said it was unfortunate that instead of
creating wealth, the Opposition’s plan is to abuse existing wealth so
that three people can get jobs.
“You know, people have
agreed to take jobs that don’t exist. One of the opposition leaders said
in a media interview that the first job for the team will be to use
billions of shillings to change the Constitution so the three phantom
jobs can be legitimised,” Mr Esipisu said.
LEADERSHIP STRUCTURE
The
State spokesperson was responding to a question regarding the
Opposition’s leadership structure during his weekly media briefing at
State House on Sunday.
He said opposition figures ought
to know better that they cannot somehow enact constitutional changes
within 90 days of taking office to create three jobs.
“Making constitutional changes that require a referendum will simply not take three months. It will take years,” he said.
“And, considering how citizens have rejected MPs and Governors that
they don’t believe have used their resources prudently, they are
unlikely ever to agree to spend billions of shillings to create jobs for
the three men promised phantom ones.”
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