Friday, March 14, 2008


It was refreshing to read an accurate take on the Muthaura's last week's press conference.
D. KIPKORIR said this much...

On Monday(03/10/2008), the head of public service, Mr Francis Muthaura, with Government spokesman Alfred Mutua in tow, called a press conference and, with the national flag in the background, told Kenyans what he called the Government’s understanding of the power-sharing agreement signed by President Kibaki and ODM leader Raila Odinga.

In particular, he said the pact was restricted to assigning Mr Odinga the title of prime minister, maybe a security escort and half the Cabinet, and that is all. With respect to Mr Muthaura, his understanding of the deal is pedestrian, off-course and misleading.

The National Accord and Reconciliation Bill, 2008, and the Constitution of Kenya (Amendment) Bill, 2008, were published on March 6, setting in motion the legislative process to enact them into law.

The Reconciliation Bill sets out the details of the power-sharing agreement and, once enacted, will be an ordinary statute. The constitutional Bill merely intends to embed the statute in the Constitution and thus make the pact constitutional.

Dual process

The dual process of having a statute with the details, and then a mere insertion in the Constitution that says that the statute is part and parcel of the Constitution, is novel and precedent-setting in our constitutional jurisprudence. I guess the exigency of the moment was an inspiration to the people who drafted the Bills.

But drafting was the only point of convergence of ODM of Mr Odinga and President Kibaki’s PNU.

The heart and gist of the Reconciliation Bill states that the prime minister, who shall come from the largest political party in Parliament, shall “ … coordinate and supervise … the affairs of the Government, including those of ministries …”

The Constitution Bill will amend Sections 3, 15 and 17 of the Constitution to make the Reconciliation Bill part of the supreme law and make it supersede all other provisions of the Constitution and Acts of Parliament that shall be inconsistent with it.

What then are the true meanings of the two Bills? Before attempting to understand them one needs to know two things — that they are in law called enabling statutes as they are intended to create new offices and powers, and it is the exclusive province of Parliament to make laws and for courts to interpret them when there is a conflict.

In interpreting statutes, one has to look at several established parameters and principles. And of paramount importance is to give effect and efficacy to the intention of Parliament in legislating them.

The preamble to the two Bills, to which President Kibaki and Mr Odinga appended their signatures, is clear and states: “The crisis triggered by the 2007 disputed presidential elections …threatens the very existence of Kenya … neither side can … govern the country without the other. There must be real power sharing …”

Any interpretation of the Bills must, therefore, never contradict the intentions and objectives of what the President and Mr Odinga signed.

Both leaders have a duty to give Kenyans a joint statement of what they meant, and one side should not give a disputed position. As ODM has rejected Mr Muthaura’s statement, it must be taken that his statement was a personal view.

Further, meanings of Bills must be unambiguous and mean what they say as well as create consistency.

Every person is free to consult their dictionaries to get the meanings of the operative words that create the office of and give powers to the prime minister.

If words used in a Bill are meaningless or give contradictory and ambiguous dictionary meanings, it behoves Parliament to correct them.

The Bills say that the prime minister shall have “… authority to coordinate and supervise …” functions and affairs of the Government, including ministries.

The simplest dictionary meaning of this is that the prime minister shall have power — real power — to superintend and oversee all powers of government and ministries to create order, harmony and organization. The words cannot have a clearer meaning.

Government and ministries mean what they say; this is the entire Executive arm. The other arms of the State are the Legislature and the Judiciary.

Government and ministries include the entire civil service, the armed forces, the provincial administration, the diplomatic corps and the parastatals.

Supervisory role

The prime minister will thus have the overall supervisory and coordinating role over the entire Executive to its fullest extent as long as this does not conflict with the overall powers of the President as set out in sections 23 and 24 of the Constitution.

As the creation of the office and the powers of the prime minister was by President Kibaki’s agreement, we must take it to mean that their powers shall be seamless.

My understanding is that the prime minister shall be a co-president. The premier will, therefore, exercise all executive powers, except that of being commander-in-chief of the armed forces and receiving diplomatic accreditations.

The other interpretations of statutes are more scientific and are the preserve of the courts. Meanings beyond the clear, ordinary and unambiguous are left to the courts.

This interpretation is to create logic and consistency in the entire legal body to remove any unintended consequences. However, the power of the courts leaves it to the individual persuasion, philosophy and, tragically in Kenya, the judge’s tribe.

However, the judges will still be guided by history, context and public policy in their interpretation. The two Bills are, as admitted in the preamble, caused by the ineptitude and incompetence of the Electoral Commission which left Kenyans in doubt as to who the president is.

It will take a very unpatriotic and completely incompetent judge to give a meaning that is contrary to this history, context and public expectations.

Kenya needs to heal and move forward, and it is evident that the President and Mr Odinga know what we expected, and do expect, of them.

In the next one week or so Parliament, through a guillotine process, will enact the two Bills into law. The House is wholly empowered to have short-cuts in its procedure when there is cause, and isn’t there one now?

The Reconciliation Bill needs a simple majority of Parliament to be passed, whereupon it will be gazetted and assented to by the President.

The Constitutional Bill needs 65 per cent of all MPs and, once passed, automatically becomes law without the presidential assent. Parliament and the attorney-general need, therefore, to work in sync to bring both Bills into operation at the same time and seamlessly.

In the meantime, Mr Muthaura and like-minded officers should stay clear of the roles of the AG and the courts.

Interpreting the law is not part of the duties of a civil servant, and I am surprised that Mr Moses Wetang’ula and Mr Mutula Kilonzo, lawyers of impeccable record, will want to acquiesce to Mr Muthaura’s amorphous and non-existent duty.

Besides, the office of the head of public service being non-constitutional, will be subservient and answerable to the prime minister. Section 19 of the Public Officer Ethics Act, 2003, makes it a criminal offence for a civil servant to give false or misleading statement to the public.

Our prefects, AG Amos Wako and the head of the Kenya Anti-Corruption Authority, Mr Justice Aaron Ringera, should read and enforce it.

As our nation-state is trying to heal, we must stand up against people who want to derail the process.

Kenya is bigger than individuals, and our objective is to move forward according to the road map given by the mediation chief, former UN secretary-general Kofi Annan, and his team.

We must go through all the agreed processes. Some people will have to lose power and others gain it, but Kenya must stand united.

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