Kenya: Amend the National Accord and Reconciliation Bill Today!

By Mutahi Ngunyi

THIS IS A LETTER TO MPs. AS you begin debating the two "peace" Bills tomorrow, consider some thoughts.

For starters, the important thing in the peace deal is not the letter of the agreement; it is the spirit. Which is why you should not dismiss the "Muthaura project" and the leaflet circulated in Parliament on Wednesday last week.

In the spirit of the "peace deal", you must remember that this was never a struggle between a right and a wrong. It was a struggle between two rights. The "Muthaura forces" are right, although they are sheepish about their claims.

Similarly, and fundamentally too, ODM is right! And this is why you must not be rushed. In fact, you have no choice but to amend the National Accord and Reconciliation Bill. Reasons?

First I want to address ODM legislators. Good people, you are being cheated. My hunch is that PNU will support the Accord, and botch the amendment entrenching it in the Constitution. Not because the "Muthaura forces" are sneaky, but because the Accord is untenable in its present formulation.

If you pass the Accord before the constitutional amendment, nothing could stop the President appointing the grand coalition Cabinet the following day. And the country would break into a party.

IN THIS MOOD OF BLIND CELEBRAtion, the Constitutional Amendment Bill would be put to the vote. At this point, the "Muthaura forces" would ensure it does not garner the two-thirds majority.

In fact, instead of the 148 MPs required to pass a constitutional amendment, they would raise something like 145 MPs. The other MPs will either be absent or will abstain from voting. And with this, PNU will have won. They will have created the position of Prime Minister through an Act of Parliament as opposed to a constitutional amendment.

Would you blame President Kibaki for this? The answer is a resounding No! This would be blamed on the renegade MPs from PNU.

In the meantime, you would be in government with Mr Raila Odinga as Prime Minister. Would you abandon your positions and return the country to violence because the power deal was not constitutionalised? Maybe not. But if you accept the deal through an Act of Parliament, you would be cooked! Let me explain why.

If you accept the deal using the Act, PNU can decide to withdraw from the coalition at some point. This would annul the Act, disband the position of prime minister, and send all your ministers packing.

But can PNU do this? Definitely. If the country returns to normalcy and the bandit forces in the Rift Valley and Mt Elgon are neutralised, PNU can gamble on this. More so if the coalition government is problematic. And this is why you must accept nothing short of a constitutional amendment. In fact, you must insist on amending the Constitution first and enacting the National Accord and Reconciliation Bill later. Otherwise, you will be at the mercy of PNU.

Now I want to flip the argument and argue that a constitutional amendment is fatal for PNU legislators.

First, I must disagree with you regarding the creation of two centres of power. I submit that you will be the biggest beneficiaries of the position of prime minister in future. When Mr Odinga is president with 50 per cent executive powers, Ms Karua can be premier enjoying 50 per cent powers. And when Ms Karua is president, Mr William Ruto can be premier.

At any given moment, you can either occupy the position of president or prime minister with 50 per cent powers. Why would you fight such an arrangement unless you are myopic?

Second, if you plan to sabotage the Constitutional Amendment Bill, you would have a point. PNU has the numbers, but can never control Parliament. This is why, with 4.5 million votes, Mr Kibaki could only manage 45 MPs, plus some 20 or so from the fringe parties.

With 4.3 million votes, ODM had over 90 straight MPs. What does this tell us? If the prime minister is to be chosen by Parliament, PNU would stand no chance in future. This is so because some of our constituencies have as many as 100,000 voters, while others have as few as 4,000. Yet the two extremes produce one MP. And if it takes more voters to elect a PNU MP, than an ODM MP, ODM would occupy the PM position forever.

In other words, you must not rush the constitutional amendments. If you entrench this position in the Constitution, you must also go for proportionate representation in which your number of MPs is increased to match your population size. The two must be mutually exclusive and constitutionalised. Short of this, you could lose both the presidency and the premier position to ODM in future.

NOW, IF A CONSTITUTIONAL AMENDment is bad for PNU and the National Accord and Reconciliation Act is bad for ODM, what must you do?

This takes me back to my original submission: you have to amend the Accord. You have to introduce Section 9 to the Act or amend Sections 6 or 8. The amendment should state clearly that, in the event one coalition member pulls out and the Act is annulled, we should go for fresh elections.

This would secure ODM's 50 per cent power-sharing deal and provide PNU enough time to think through the constitutional implications of a PM position.

Otherwise if the Accord is passed and the constitutional amendment fails, ODM will be the loser. And if both the Accord and the Constitutional Amendments are passed, PNU will lose big. What do you think?

Mr Ngunyi is a political scientist with The Consulting House, a policy and security innovation think-tank working in the Great Lakes Region and West Africa.the article was first carried in Kenya’s Daily Nation Newspaper.