STATE OF THE NATION: How to implement power sharing deal between the President and Raila.

Posted on February 25, 2008. Filed under: Butdoisay TRUE STORIES |

Publication Date: 2/26/2008
It is not hard to see what will happen to Kenya if a settlement is not reached between the Government and the Opposition in the ongoing political negotiations mediated by Dr Kofi Annan. 

President Kibaki, ODM leader Raila Odinga shake hands as chief mediator Kofi Annan looks on during the launch of peace talks.Negotiators are yet to settle on a clear power-sharing deal between the two leaders.Photo/FILE

Violence in the Rift Valley and Nyanza will resume and intensify; Uganda, Southern Sudan and Rwanda will be blockaded; transport, in recent years a major hard currency earner, will collapse; the current food shortages in parts of the country will deepen and urban food prices will spike. 

The region will be destabilised and the current economic crisis compounded. Most worrying, and as the International Crisis Group warns, militias are arming. This should give pause to all. There are between 1.9 to 3.2 million small arms in private hands in the Southern Sudan and probably twice that number in Somalia. Kenya’s borders with both countries are open spillways, allowing easy inflow of these weapons.

A deal must be reached if Kenya’s descent into what the Economist calls ‘hell’ is to be arrested. Happily, the key elements of an outline deal are on the table: power-sharing between the president and a prime-minister within a government of national unity, constitutional reform within a year, a re-run of the presidential election in two to three years and long-term measures to deal with poverty and inter-ethnic inequalities. But none of these proposals has been fully thought through and how to implement will be difficult and controversial. 

Consider the power-sharing proposal first. The details are not agreed but the arguments on both sides are clear and entrenched. The Government says that any power-sharing between the president and the proposed prime-minister must be within the current Constitution. 

Amend the constitution

Though the Constitution does not provide for a prime minister, the argument is that the language is permissive enough to allow such a position to be created. 

The Orange Democratic Movement doesn’t like that proposal and insists that any power sharing deal be secured by amending the Constitution.

The government responds that constitutional reforms will be done within a year, so why bother with amendments now? This seemingly sensible response overlooks the history between President Kibaki and Raila Odinga. The last time Mr Odinga was promised a prime-minister’s position under the current Constitution, he ended up as Roads and Public Works minister. 

But there are other, more compelling arguments: the executive power of the Republic is vested in the President. Any informal agreement that these powers will be shared between the President and a prime-minister plainly violates the Constitution and opens room for litigation challenging decisions made by the proposed Premier. 

In addition, the prime minister would be clearly outranked by the vice-president, the Head of State’s chief deputy and successor. By their lights, ODM sees the PNU proposal as an invitation to join the Kibaki government not a deal to share power. 

Given both the antecedents and the legal complications, ODM’s concern would surely be how to make a deal stick. Given the President’s plenary powers under the current constitution, how is that to be done?

In most governments of national unity, there are in-built ratchets that make it hard for either party to double-cross the other. For example, the parties may agree to mutual vetoes that allow each to block decisions that hurt its interests. Precisely which decisions are subject to veto is usually part of the initial settlement. 

But even if both Mr Kibaki and Mr Odinga could bridge the chasm of distrust between them, they must be alert to limits of a government of national unity. It would not be a solution to the crisis and it has many in-built flaws that could cause future difficulties. First, a GNU is an elite deal. The masses will remain divided and the structural causes of ethnic conflict will persist. 

Secondly, such governments tend to reward those able to mobilise their ethnic groups rather than politicians who have cross-ethnic support but are unable to mobilize specific ethnic groups. 

By rewarding those who appeal to ethnicity, such governments often entrench the very factors that cause the crisis in the first place. As the experience of Bosnia Herzegovina shows, political settlements may end conflict and yet fail to promote inter-ethnic co-operation. Thirdly, even though power sharing is a desirable and necessary path from deadly conflict, it is not a viable solution to the deep-seated problems of ethnically divided societies. 

Allocate resources

Inevitably, power sharing generates rigidities, inefficiencies and investment of political energies towards allocating resources between ethnic groups rather than managing the country.

These realities suggest that a government of national unity should have a narrow mandate and a short duration. For Kenya, this probably means that its mandate should be to normalise and calm the country, agree a raft of legal reforms to restore the integrity of the electoral system including appointing new electoral commissioners and agree a new framework for making a new constitution. 

This leads to the second proposal on the table: the enacting of a new constitution within a year. Both sides agree that such reforms are urgent and necessary. But whether such reforms can be achieved within the proposed time-frame depends on how the new constitution is to come into force. 

To begin with, a referendum is surely out of the question in the wake of the deadly post-election conflict. A vote would merely confirm and reinforce the divisions that are already so sharpened. More dangerously, like our recent election, a referendum risks producing the same ‘all or nothing’ outcome that has brought us to the current crisis. It would inevitably exacerbate tensions and generate post-referendum turbulence no less deadly than that now afoot. 

Almost as destabilising would be the fratricidal rifts that must surely emerge in a Kibaki-Raila government as it tries to hammer out an agreement on broad constitutional reforms.

The range of issues that need to be agreed for an overhaul of the Constitution are probably well beyond what these two protagonists, already deadlocked over much smaller issues, could ever hope to agree. 

An alternative suggestion, pushed by ODM, is that Parliament should enact the Bomas Draft. 

But this is way too divisive and, as is, both the Bomas Draft and the suggestion itself, rest on dubious legitimacy.

National Assembly

The rejection of the Wako Draft in the 2005 referendum was not, surely, a reverse endorsement of the Bomas Draft, many of whose provisions remain controversial. Moreover, ODM has neither the numbers in the National Assembly nor the overwhelming electoral mandate that it would need to justify having its proposal accepted whole cloth. Indeed, if you put aside the ‘flag of convenience’ marriage between PNU and ODM-K, the truth is that a majority of voters rejected both Mr Kibaki and Mr Odinga.

Mr Musyoka and Mr Kibaki’s voters were surely more than Mr Odinga’s which, if combined with the ODM-Kenya leaders’ were, in turn, more than thoseof the Presideent. 

This leaves few viable options. 

The most sensible one is to limit the mandate of the GNU to four issues: electoral reform, including powers and appointment of a new electoral commission; agreement of a legal framework for making a new constitution; an agreement on the modalities and framework for dealing with underlying causes of the current crisis and overseeing a new presidential election in two or three years. 

The President then elected and the government subsequently formed would have the mandate to oversee the making of a new constitution. 

The re-run of the presidential election is the third proposal on the table. 

There seems to be growing public support for this idea, but some clarity and reforms are needed before that happens.

First, President Kibaki’s supporters must remember that won’t be a candidate in the re-run.

He will have been elected for his second term and unless the Constitution is amended to allow him a third term- a very tall proposition indeed- he cannot run. Assuming that Kanu leader Uhuru Kenyatta does not run in that election, the race would almost certainly be between Mr Musyoka and Mr Odinga.

Of course, Mr Odinga himself may opt out, especially if he secures real power as prime minister through a constitutional amendment as ODM now proposes.

If both he and Mr Kibaki are out, then the race would be wide open but the four front-runners would be Mr Musyoka, Mr Kenyatta, Mr Musalia Mudavadi and Mr William Ruto. 

But there may also be some legal changes to presidential elections needed if we are to avoid the crisis of the type Kenya is in now. 

Surely, the law must make it harder for a president-elect to arrange a private swearing in that presents losers with a legal fait accompli. 

The quickest way to stop this would be to mandate a waiting period between the election and the swearing in of the president. In the United States, this waiting period is almost three months. The results of the election are usually known on November 3 but the President-elect is sworn in on January 20 of the following year.

The delay gives enough time to the losers to challenge the results in court. If such a provision were in our law, the current crisis may not have happened. 

There are other thoughts on the presidential re-run, including the proposal that an election should be held sooner than two or three years. This is neat but probably dangerous. 

There are now nearly 600,000 internally displaced people in Kenya. Any election held within twelve months would almost certainly disenfranchise them: many have lost their livelihoods and important documents. Some don’t even want return to the constituencies in which they had voted in December. 

Add to this the need to calm the country and agree resettlement and reconstruction and you’d probably conclude that 365 days are not enough to prepare an emotionally wracked country for yet another divisive election. 

The final set of proposals relate to inequalities. There are some agreed facts. No doubt politicians played their part, mobilising class and ethnic feelings and spreading hatred but they were successful because there are real grievances in the country that make people manipulable. Top of these are deep class differences and even deeper inter-ethnic inequalities. 

Inequalities exist everywhere in the world but the sharper they become, the more likely they are to stoke conflict, undermine mutual trust and weaken faith in institutions. Ethnic inequalities are particularly pernicious because they imply that tribe and place of origin are what determines one’s chances in life. Yet these are not factors that a person can do anything about. 

A child born in Kakuma today does not have half the opportunities that another born in Karatina does. Neither will her children. The short of it is that inequalities reproduce themselves over time and across generations, locking the excluded in a perpetual inequality trap. 

And though it will never be possible to completely eliminate regional inequalities, appropriate policies can blunt the harm that such differences create. 

But even if a deal is agreed on this question, what exactly can a government do? Clearly, the first issue is land reform. What exactly is doable is probably a mix of policies. Many countries – India, Vietnam and Japan- have undertaken politically difficult land reforms in the course of their history and they can provide important lessons. 

Some areas in Kenya where land has been sub-divided into slivers of exhausted soils almost certainly need land consolidation. Other areas with large fallow lands call for sub-division. Some people may be prepared to give up their land if they had better economic opportunities.

Religious reasons

Others will not give up their land for emotional or religious reasons- say their relatives are buried there or it is considered sacred. The point is that there isn’t one solution. What is certain is that sleeping through the land crisis is no longer a viable option. Beyond land reform, economic opportunities must be expanded for all. 

Providing infrastructure, health, education and vocational training is usually a good way to seed long-term economic growth. The immediate challenge is that within the framework of a political settlement, the parties must put in place machinery for dealing with these questions. 

The short of it is that the ideas on the negotiating table are sufficient to forge a workable agreement to rescue Kenya from descent into yet another African banditstan but the signing of the deal-when it happens- is the easier part. The road is much rougher beyond the deal.

Mr Maina is a constitutional lawyer practsing in Nairobi.


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