Genesis of Kibaki-Gaddafi deals

It all began in 2001 ahead of 2002 General Election.
Then President Daniel Moi was facing unprecedented challenge to his 24-years leadership and the future of Kanu, the party he had led with an iron grip for decades, seemed uncertain. The opposition, led by its Leader in parliament (Emilio) Mwai Kibaki, was divided more than ever. Kibaki together with the late Vice-President Michael Kijana Wamalwa and current Water minister Charity Ngilu were fronting for a united opposition while Raila was edging closer to Moi in what culminated into a political merger. Raila dissolved his party (National Development Party) and joined Kanu as its Secretary-General.

But the marriage was short-lived. Raila left Kanu and teamed up with Kibaki’s National Alliance Party of Kenya (NAK) to form National Rainbow Coalition (Narc), which ended Kanu’s 40-years grip on power.

Realizing that the tide of change was almost inevitable, Moi opened the floodgates of money. The opposition retaliated by embarking on a global campaign to raise funds for purposes of the presidential election. The opposition chiefs began knocking at the doors of every regime they felt was at odds with Moi. That’s how Kibaki landed in Tripoli.

Gaddafi had fallen out with Moi during the cold-war era. The Libyan embassy was by then said to be carrying out espionage activities in Kenya. Gaddafi was heavily accused by Moi of giving Kenyan dissidents a safe haven to carry out their activities.

In 2002, Kibaki and Raila went to Tripoli and secured millions of oil money to fund their campaign. In return, they promised Gaddafi, investment opportunities in strategic areas upon taking over power. In fact, Kibaki’s nephew, Alex Muriithi who passed away late last year, was sent in confidence to sign the deal(s) on behalf of Kibaki.

It is soon after January 2003 that Libyans began making in-roads in Kenya’s corporate world. The matters were helped by the fact that Ugandan President Yoweri Kaguta Museveni - who has a long known association with Gaddafi - seemed to enjoy cordial relations with the new Kenyan President. Since then Kibaki, Gaddafi and Museveni have met on three different occasions in Kampala and Tripoli.

But Raila - who was a major player in securing the Libyan deals - soon fell out with Kibaki over matters political. A clique close to the first family, popularly known as the Muthaiga golf buddies, quickly monopolized the Government and in essence the deals. This prompted bad blood between Raila camp and Kibaki side. There was the feeling that a group of Kenyans from a certain region seemed to hold onto the notion that they were the only ones with the right to “eat”.
This bad blood will continue as long as the Kibaki clique accepts to “eat” with the rest!

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Deals PNU must approach "very" cautiously

Members of the new Grand Coalition Government seemed to work in tandem until the recent emergence of details that Grand Regency Hotel has been sold. It all started with the Central Bank of Kenya (CBK), announcing in a formal occasion, that business tycoon, Bro. Paul Kamlesh Mansukural Damji Pattni had surrendered the hotel to CBK in exchange of amnesty from criminal charges by Kenya Anti-Corruption Commission (KACC). Later on news started spilling out that the prestigious 5-star hotel had, in fact, been sold to an investment firm owned by the Libyan Government. Finance minister Amos Kimunya and CBK Governor kept on denying the allegations of any sale until maverick Ugenya legislator and Lands minister James Orengo broke the news that the Government had sold the hotel and the parties involved were just waiting for the D-day to hand-over the coveted asset to Tripoli.

Hell has since broken lose and the twists and turns surrounding the scam could just be the “beginning of the end” of Kimunya’s stint in the Cabinet. If he falls, he will be following in the footsteps of his predecessor David Mwiraria who was forced to resign at the height of Anglo-Leasing scandal. Others who have met a similar fate while serving at the treasury include former VP and current Internal Security minister Prof. George Saitoti who was at the helm of the Finance ministry when Goldenberg scandal - Pattni is said to have bought Grand Regency Hotel out of the proceedings of the multi-billion scandal - took place.

But this is just one deal among many other lucrative ones that the Government (read PNU/State House) has entered into.

Top among these deals is the multi-billion contracts on the extension of Mombasa-Kampala oil pipeline and the sale of Kenya Petroleum Refinery Limited (KPRL) in Mombasa. The two have already been offered to the Libyan Government. The transaction to award Tamoil of Libya the contract to build the Eldoret - Kampala section of the pipeline was arrived at on December, 21, 2007 at Nyayo House, the Hq of Energy ministry. The pact was followed by the signing of agreement by Kenya’s Energy minister Kiraitu Murungi and his Ugandan counterpart Daudi Migereko on 22^nd January, 2008. The lucrative deal estimated at Ksh6.2 billion (USD100 million) is crafted on concession arrangement. The Libyans are not through yet! In November last year, Libya Oil, popularly known as OilLibya, completed the acquisition of the assets of Exxon-Mobil, which was closing down its African investments. OilLibya is the Kenyan subsidiary of Tamoil Africa Holdings Limited (TAHL), itself a part of Libyan-African Investment Portfolio (LAP) – the investment arm of the Libyan Government. Tamoil similarly won the tender to buy Kenya Petroleum Refineries Limited (KPRL) in Mombasa. The refinery, the only of its kind in the region is owned by Government of Kenya (GoK) 50%, Shell International 17.1%, British Petroleum (BP) 17.1% and Chevron (formerly Caltex) 15.8%.

Last year, the Libyan Government extended a Ksh21 billion debt to GoK to finance the upgrade of KPRL and put up a Liquefied Petroleum Gas (LPG) facility. The award of the tender has already triggered a war with Indian oil giant Reliance Industries Limited (RIL), which is said to be eyeing a stake in the refinery after it bought out Gapco Group, a regional oil marketer. Gapco is partly owned by Prime Minister Raila Odinga through his Specter International Limited (SIL).

Early this month, Energy PS Patrick Nyoike announced that GoK was in the process of buying into the assets of Chevron (Caltex Kenya) Ksh3 billion. But sources within the industry say a silent “deal” is being worked on with OilLibya - which is also bidding for the same business – for the GoK to withdraw in favor of the Tripoli-based company.

Likewise, transactions touching on the sale or transfer of property, land especially, owned by National Social Security Fund (NSSF) must be handled very carefully. Much of the land owned by the giant social security fund was acquired in 1990’s in controversial circumstances and their disposals have - most of the time - ended in court. Libyan-African Investment Portfolio (LAP) which bought Grand Regency Hotel has equally bought a prime piece of land opposite the entrance of the Hotel in which it is said to be in the process of building another hotel-cum-shopping mall. Prestigious buildings within the CBD owned by NSSF namely; Hazina Towers, View Park Towers, and Hazina Centre (housing Nakumatt Lifestyle) are all up on sale at below the market-rates, analysts say.

Deals on the sale of public companies through Initial Public Offers (IPOs) must also be above reproach. Why? Kenyans no longer view the stock market as a business opportunity but rather a con-game where the die is cast. For instance, the real owners of Mobitelea, said to own 10% of Safaricom remains unknown. Mobitelea is allegedly owned by former president Daniel Moi and his associates as well as clique of wealthy British technocrats. No wonder the British Government did little in its attempt to investigate on the real owners of the mysterious firm.

Freebies

Talk is rife that Kimunya and Kibaki might have received an oil tanker as a gift from Gaddafi. The ship is said to have docked at the Mombasa port a month ago in the name of a company owned by the family of the former kingpin of Coast politics, the late Karisa Maitha. Maitha, a flamboyant politician indeed, was a close and trusted ally of President Kibaki.

Kimunya, his boss President Kibaki/First Family and their allies must walk cautiously on these deals, especially now that they are in a (forced) political marriage with strange bed-fellows. ODM prides itself of very astute technocrats as well as politicians with a wide network both in the Government and corporate world. James Orengo (Lands), Otieno Kajwang’ (Immigration) and William Ruto (Agriculture) are some politicians one would dread to serve with in the same Cabinet.
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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.

Kenya:The unending struggle for a new constitution

The struggle for a new constitution dispensation is as old as independent Kenya. Attempts by Kenya’s first Vice-President Jaramogi Oginga Odinga (Raila’s father) to have the current constitution reviewed in early 1960’s were fiercely opposed by the powers that be. Instead, the ruling elite ganged-up and created a one-party state prompting the emergence of a powerful presidency– a monarch of sorts.

In 1992, then President Daniel Moi agreed to the repeal of Section 2(A) of the constitution, legally re-introducing multi-party politics in the country. But this was hardly preceded by change as Kenyans had anticipated; instead Moi took the chance to manipulate politics of the day in his favor to extend his stay in power. In 1997, following protracted calls for review that were punctuated by countrywide mass demonstrations, MPs including Kanu legislators formed Inter-Parties Parliamentary Group (IPPG) whose agenda was to create a level-playing ground ahead of the General Elections. President Kibaki led the opposition to the negotiation table in his capacity as the Leader of the Official Opposition.

Following the 1997 election, the Kanu Government finally agreed to a full review of the constitution though sharp differences later on emerged on the composition of the review team and who between the state, parliament and the people should drive the review process.

Finally, all political parties settled on a “people-driven” constitution that saw Constitution of Kenya Review Commission (CKRC) hold public hearing all the 210 constituencies and compiled a report as per the views of the people.

A National Constitutional Conference (NCC) was held at Bomas in Karen/Langata area between April 28, 2003 and June 6, 2005. During the conference serious differences emerged touching on several Chapters of the draft top among theme being the Executive, Devolution, Land and Religious Courts. The adopted version by the delegates at the Bomas Conference was challenged in a court of law and declared “unconstitutional” since the process leading to its adoption was likewise “unconstitutional”. In the end, the country ended up with two documents, the original draft (quashed by High Court) popularly known as Bomas draft and the revised version (by parliament) referred to us the Wako Draft (was drafted by a team of experts led by AG Amos Wako).

The Executive

The Bomas draft, commonly associated with Raila Odinga and ODM, vests the executive authority of the Republic at the national level in the President, the Deputy President, the Prime Minister and Ministers. The President should remain as the Head of State, Commander-in-Chief of the Defense Forces and the Chairperson of the National Security Council. The President, however, would be elected through a popular vote and such a candidate would have to receive more than 50 percent of the votes cast and a run-off must be held in three weeks time if none of those running manages more than a 50 percent vote. The president can only serve for a maximum of two terms of five years each. The Deputy President shall be the principle assistant to the president and shall act as the president in the event the Head of State is incapacitated or out of the country.

The Wako draft, favored by Kibaki’s PNU side, gives the president immense powers to “make and terminate appointments” and constitute and abolish offices of the Republic. This was seen by many as an attempt by the Government side to create room for Kibaki, who by then was facing a backlash from within his own party members, to create ministries and public offices with a view to reward his allies and in the end stem discontent. In the Wako draft rejected by the people, the President enjoys powers to appoint and dismiss the Cabinet “at will” (including the PM) without consulting parliament.

On the Premiership, the Bomas draft that Raila wants adopted in its entirety, the PM is the Head of Government whose work shall be to coordinate the work of ministries, prepare legislation, Preside over Cabinet meetings and is answerable to parliament.

The Wako draft instead reduces the PM to a mere Leader of Government Business in parliament, a role currently played the VP. In this arrangement, the PM would be directly accountable to the President rather than parliament.

Bomas draft proposes that the PM is the MP who is the leader of the largest political party, or a coalition of parties represented in parliament, or if such a leader is unable to command the confidence of the House, the MP who is the leader of the second largest political party, or a coalition of parties represented in parliament.

However, the Wako draft leaves loopholes for mischief: the president proposes an MP for appointment to the National Assembly for appointment as PM. On receiving the proposal, the Speaker summons parliament for a vote to confirm the appointment. If supported by a half of the Members the names passes, but if it fails, the president can make a second proposal. In the vent the two proposed names don’t sail through; the president shall be at liberty to appoint any MP as the PM. The ODM lieutenants agued that such an arrangement could easily be open to abuse as the president could deliberately propose unpopular candidates so that they can be rejected, giving him leeway to appoint a PM of his choice without reference to parliament.

Devolution

While the Bomas proposed four levels of Government (National, Regional District and Locational), the Wako draft proposed just one level – the District. Bomas draft proposed 14 regional government (whose work would be to coordinate the implementation of projects in all districts within that region), 70 district Governments and the Nairobi Metropolitan Area (with 4 boroughs). The Bomas draft fixed the number of districts out of fear that parliament may take advantage of any constitutional flaws to create many districts out of political expediency rather than economic and social need. The Wako draft also gave the president mandate to create new districts. The ODM side feared the clause may create room for manipulation, especially if the incumbent creates more districts in areas where he has solid political support.

While Bomas proposed the limits in the interference in the functioning of devolved units by way of creation of the Senate (Upper House), the Wako draft proposed the formation (by an Act of parliament) of Forum for District Governance. ODM opposed this arrangement equating it to District Focus for Rural Development established in 1980s by the Moi regime to economically uplift marginalized communities, but ended up enriching areas perceived to be politically-correct and impoverishing opposition strongholds. The basis of argument was and continues to be “devolution versus delegation”.

Land

The two documents and the parties from either side agreed on the formation of a National Land Commission (NLC) but sharply differed on leasehold. Both drafts proposed a 99-year leasehold but the parties failed to agree on the limit of land a person can own or lease. The ruling elite was opposed to any such limits as many, if not all, have huge chunks of land some almost equal to an entire district. A past survey showed that the families of Kenya’s two former Presidents, Kenyatta and Moi, owned land equivalent in size to the entire Nyanza Province. The issue of who between national Government and the community should own wildlife, game sanctuaries, land, forests, and water-catchment areas was another point of departure. The Maasai community living in Narok county council argued that an arrangement based on Wako draft would rob them any meaningful source of revenue once the famed Amboseli National Park was placed under the National Government. Currently, the park is under Olkejuando County Council and is said to be the richest council in Kenya (yet the poorest in terms of social-economic development).

Religious Courts

Both the Bomas and Wako drafts entrenched the Kadhi’s courts in the constitution. Its mandate, as proposed, is to determine questions of Islamic Law relating to personal status, marriage, divorce, inheritance and succession. However, the latter went further and proposed the creation of Christian, Hindu and “other religious” courts whose authority is on people professing the same faith on matters of personal status, marriage, divorce, inheritance, and succession. Though some churches like Catholics, Anglicans and Methodists among others, analysts argued, have a written theology and a confirmable body of canon law, many small denominations lacks such principles. The debate on Kadhi’s court became a matter of national debate prompting many Christians to vote against the proposed draft on the assumption that it was giving room for the introduction of sharia law in Muslim-dominated regions like Coast and North-Eastern province.

Just as yesterday, the four clauses remain the main bone of contention dividing the country down middle and unless they are effectively addressed in manner that satisfies the majority Kenyans, a new constitution dispensation could remain just a mere mirage.

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Endless Commissions of Inquiry/Tribunals in Kenya

1. JM Kariuki inquiry on the brutal assassination of charismatic Nyandarua North MP
2. Ouko inquest into the death of Cabinet minister Robert Ouko
3. Akiwumi Judicial Commission of Inquiry on tribal clashes
4. Tribunal on the purge on Judiciary
5. Busia Airplane crash
6. Goldenberg (scandal) commission
7. Ndung’u Land commission
8. Kiluki commission on the Artur brothers
9. Krieger commission on the 2007 post-election violence

If there is one thing that Kenya prides about is the culture of impunity. From the Kenyatta regime to the current Kibaki administration, numerous commissions, tribunals and task forces have been constituted, albeit with state blessings, to unravel some mystery into past moments of dark events. None of the reports by any of the commissions, however, has been acted on. The country has disappointing history of commissions of inquiry.

Again issues to do with how to treat official information, considering that is produced by public officials in the course of duty at the taxpayers’ expense, have always been subject of heated debate. The Kenyan law remains highly insufficient. Even in circumstances where claims of secrecy are justifiable, only the President and the Ministry of Justice have access to such reports in their un-edited version. Normally, the president receives such reports at State House with only the Presidential Press Service (PPS) present, and then embarks on the “study” of its contents at his own pleasure though he is under no legal obligation to do anything else. He can choose to keep it for himself and let the media and the public to speculate.

Goldenberg commission

It was set up by President Kibaki in 2003 immediately after his landslide victory. Kibaki-led opposition coalition, Narc, had campaigned on the platform anti-corruption and good governance. The commission was set up to unravel the truth about the Goldenberg Scandal, Kenya's biggest corruption scam in which the country lost up to USD600 million through questionable exports of gold and diamonds between 1990 and 1993. Business Tycoon Kamlesh Mansukural Damji Pattni, now a city pastor was the scandal’s chief architect through his dubious firm Goldenberg International Company (GIC) Limited.

But even as the proceedings at KICC were going on, the commission’s operations were almost scuttled abruptly following the suspension of its Vice-Chairman, Daniel Aganyanya, who was among the victims of an investigation into malpractice in the judiciary.

The contents of its exact finding remain unknown. One of the scam’s chief architects, Prof George Saitoti is a top figure in the Kibaki administration and one of his likely successors at State House. Pattni has just secured amnesty after he agreed to hand-over Grand Regency Hotel, one of the precious assets he built from the proceeds of the scam.

Purge on the Judiciary

The famous “purge on the judiciary” a.k.a “radically surgery on the judiciary” was hailed as landmark but the subsequent judicial commissions/tribunals were bogus in operations and ended achieving little as some of the suspended judges were later on re-instated. A record 23 High Court judges had been suspended following a damning dossier from Kenya Anti-Corruption Commission (KACC) indicating that corruption was rampant in the Kenyan legal system, with almost half of the country's judges and close to a third of its magistrates said to be corrupt. The judges were given the option to either resign and leave quietly or be investigated by tribunals. By then, KACC had stated in its report that it had evidence to the effect that corrupt judges took bribes from litigants to rule in their favor, delayed ruling on cases in return for bribes, had engaged in business outside the judiciary and were living beyond their known means.

The two tribunals were mandated to investigate six of the country's nine judges in the Court of Appeals and 17 judges out of the 36 in the High Court. The tribunal investigating the High Court judges was chaired by influential Kenyan constitutional lawyer Lee Muthoga, while the panel investigating the Court of Appeal judges was headed by prominent Ghanaian Judge Akilano Akiwumi. Muthoga is prominent lawyer in the region, a past chairman of the Law Society of Kenya (LSK) and is currently an alternate Judge at the International Criminal Tribunal for Rwanda (ICTR) based in Arusha, Tanzania. Akiwumi on the other hand is a veteran Ghanaian lawyer now sitting at the COMESA Court of Justice (CCJ) in Lusaka, Zambia.

JM Kariuki inquiry on the brutal assassination of charismatic Nyandarua North MP

Josiah Mwangi Kariuki, popularly known as “JM” is said to be one of the most charismatic political leaders in Kenya’s history and was seen by many as the most obvious successor to Kenyatta following the exit of an equally charismatic Cabinet minister Tom Joseph Mboya through an assassination by the State. JM was nationally popular due to his unwavering stand on issues touching on the poor such as equal distribution of land. He was Kenyatta’s private secretary between 1963 and 1969 before the two differed over key Government policies. He is mostly remembered for his statement: “Kenya has become a nation of 10 millionaires and 10 million beggars”. This could have, perhaps, have convinced Kenyatta on why the fireband politician should be eliminated.

A Parliamentary Select Committee was immediately established to investigate the circumstances surrounding JM’s murder. None of those who were implicated into the death were ever punished. Today, many analysts say, the committee was used as a means by Kenyatta's government to mitigate a potential revolt during the time when just a little discontent was enough to stir a (military) coup. When the (censored) report was finally released, the anger had subsided and likelihood of revolt much lower.

Ouko inquest into the death of Cabinet minister Robert Ouko

He was Kenya’s (best) foreign minister ever and Kisumu Town MP by the time he met his death. He defended his motherland with zeal and steadfast sense of patriotism. He was increasingly becoming popular, something that did not go well with top State House power brokers in the Moi regime. He was found murdered on the foot of Got Arila hills in his Kisumu backyard days after he was reported to have disappeared from his Koru Home in Muhoroni. The state was uncomfortable with him due to his spirited criticism of rampant corruption within the Government he served. New of his death were received with countrywide demos that almost made the country ungovernable.

Due to local and international pressure, Moi hired the services of a British detective – John Troon - from New Scotland Yard to investigate Ouko's death. In October 1990 Moi appointed a public inquiry into the case chaired by Justice Evans Gicheru, now Kenya’s Chief Justice. The inquest suggested that Ouko had been compiling a report on corruption on the Kenyan government and how it had affected his attempts to reopen a molasses plant on the outskirts of Kisumu City. Ironically, the plant was later in 2001 used by Moi as an “inducement gift” to lure Raila Odinga into a short-lived political marriage that saw the latter dissolve his party and cross-over to Kanu party as its national Secretary-General.

The inquiry was abruptly terminated by Moi in November 1991, ahead of the 1992 polls. Several government officials, including then larger-than-life Energy minister and Moi’s right-hand man Nicholas Biwott and Internal Security PS Hezekiah Oyugi, were detained for questioning in relation to the murder but released after two weeks for "lack of evidence". A former District Commissioner, Jonah Anguka was tried for Ouko's murder in 1992 and acquitted, with the crime remaining unsolved. Anguka later fled into exile in the United States, fearing for his live. He later published a book, "Absolute Power," denying his involvement in the Ouko Murder.

In March 2003 the newly elected Kibaki-led Government opened a new investigation into Ouko's death through a Parliamentary Select Committee. The inquest, however, turned into total theatric exposing the incompetence of its chairman, Gor Sungu (Immediate former Kisumu Town MP). Attempts to summon former President Moi to give evidence were strongly opposed by his lawyer and now Cabinet minister Mutula Kilonzo. Its findings – now in the custody of the State - are yet to be made public. Moi and Biwott remain close friends of the Kibaki Government.

Akiwumi Judicial Commission of Inquiry on tribal clashes

President Moi appointed the Akiwumi Commission in 1998, and it submitted its findings in March 1999. Ten years later, no one knows the findings, which remain as much a mystery as the true identities of the individuals behind the orgy of violence. Even after numerous letters, correspondences, and meetings at State House with religious leaders and diplomats, Moi never made the report public. Today, a Truth, Justice and Reconciliation Commission is set to take effect following the publishing of a bill intended to give birth to such an institution. Such a commission could be the last remaining option for Kenyans to permanently halt the cycle of violence that normally emerges during the electioneering period.

So damning was the report that it cost the life of Roman Catholic priest Father John Anthony Kaiser. On August 23, 2000, Fr. Kaiser was shot dead. His body was found at 6 am at a junction of the Nakuru-Naivasha Highway. At the time of his shooting and subsequent death, Kaiser was carrying documents – considered too damning (to the Moi regime) for public consumption - he intended to present to the Akiwumi Commission. He was also to testify against the Moi government before the International Criminal Court ICC in The Hague, Netherlands in less than a month’s a time.

Less than a week after Fr. Kaiser's death, 14-year old school girl, Florence Mpayei dropped her rape case against then National Security minister Julius Sunkuli. The priest had used his influence to assist the young lass to access legal justice through Federation of Kenyan Lawyers (FIDA). The two events were later on to haunt and shape political direction of then powerful Cabinet minister years after losing his Kilgoris parliamentary seat. He is considered by many among the State forces behind the assassination of Fr. Kaiser. In spite of a four-year long inquest, the killers of the priest are yet to be identified for prosecution and Sunkuli is still walking free and is among the top contestants for the Kilgoris by-election next month.

Busia plane crash

Less than a month after Kibaki took power, a serious crisis hit his Government. A plane carrying senior members of his new government crashed in Western town of Busia, killing one minister and the two pilots, and leaving three ministers and several members of parliament seriously injured.

The 24-seater Gulfstream aircraft crashed into a house on takeoff from Busia in far western Kenya. The crew was coming from attending a victory party for Moody Awori in his Funyula constituency. Then labor minister, Ahmad Mohammed Khalif, died shortly after being admitted in hospital. Three cabinet ministers, Raphael Tuju (Tourism), and two of Kenya's first women to make the cabinet: the minister of State in the Office of the President, Linah Jebii Kilimo (now an assistant minister), and the Water minister, Martha Karua (now justice minister) were among those seriously injured. By then Kibaki was recuperating in his bed at Nairobi Hospital following a fatal accident few days to the 2002 general election. Lawyer Lee Muthoga was later appointed to chair a commission that would investigate the cause of the crash but whose results were never made public.

Ndung’u land commission

The commission was the work of a veteran Nairobi-based lawyer, Paul Ndung'u. It was formed to look into the unlawful allocation of public land. Its report was handed over to the President in 2004 and ‘released’ in 2005, stirring much controversy as it implicated top Government officials including the country’s topmost families – Kenyatta, Moi and Kibaki – together with their associates.

According to a ‘leaked’ version of the report, the commission had recommended the establishment of a Land Tribunal with powers to cancel fraudulent land title deeds.

On sensing public impatient, the Government through then Lands minister Amos Kimunya released a “mutilated” version of the report on the floor of parliament. But even this occasion, none of the recommendations - as contained in the mutilated version – has ever been implemented.

Kiruki/Muite commission on the Artur brothers

For the first time, the country had two commissions running parallel to each other but with the mandate to perform a similar task. The parliamentary one was chaired by immediate former Kabete MP Paul Muite and current Changamwe MP Ramadhan Kajembe, while the presidential one by former Police Commissioner Shedrach Kiruki.

The two teams attempted to unearth the truth concerning the (mercenary) activities of the two brothers of Armenian origin – Artur Margaryan and Artur Sargaryan – and their alleged links with various Kenyan top personalities and security forces, and the circumstances surrounding their deportation.

Some felt that the Kiruki (Presidential) commission could not be trusted to investigate an issue touching on the President and his family, official or unofficial. Again, Kiruki was by the time serving as a “special” security adviser to Internal Security minister John Michuki who was said to have directly hired the services of the two brothers.

Kriegler commission on the 2007 post-election violence

It is the next addition to a string of commissions whose work is only to slow down the wind of change and in essence silence the popular opinion.

The Kriegler commission was formed to investigate the circumstances surrounding the controversial 2007 general elections and the subsequent chaos that almost sent Kenya into a civil war.

Ends…

The Law governing commissions of inquiry

The Kenyan law provides for the setting up of Commissions of Inquiry under the Commissions of Inquiry Act, Cap 102.

Although it has the power to summon witnesses and admonish those who refuse to appear before it, a Commission of Inquiry does not have the powers to jail or pass sentences on any individual.

Although not all Commissions can necessarily be referred to as "Judicial Commissions of Inquiry", the term, "judicial" has sometimes been used because of the nature of proceedings even though the commissions have no powers of conviction and sentencing as is the case with the courts.

The time taken by a Commission of Inquiry to complete its work may also vary depending on the nature of the matter being handled.

Although set up to probe into an issue, parliamentary teams are not Commissions of Inquiry per se. They are composed of Members of Parliament and basically derive their powers from Parliamentary Standing Orders.

While Commissions of Inquiry present their findings to the President, a parliamentary select committee reports to Parliament.

According to the Act governing the operations of Commission of Inquiry, ‘evidence adversely affecting the reputation of an individual shall not be received unless the commissioner is satisfied of its relevance to the inquiry, and that the person/persons are given prior warning of the general nature of the evidence or when this is not done, a general nature of the evidence to be presented is communicated to the person’.

Under Kenyan Law, the Commissions of Inquiry Act Cap 102 provides for the appointment of commissioners to inquire into and report on matters of a public nature referred to them by the President, to prescribe their powers, privileges and duties, and to provide for other matters relating thereto’.

The President is also allowed - as provided by the Act - to appoint an additional commissioner or commissioners in varying designations such as chairman or deputy chair or appoint a new commissioner in case the sitting one dies or is unwilling to act or is, in the opinion of the President, unsuitable to continue serving as a commissioner.

The Commissions of Inquiry Act also empowers a commission to direct that the public not be admitted to all or a specified part of the proceedings. This may be done for the preservation of order, protection of the person, property or reputation of any witness in the inquiry, or anyone referred to during the proceedings.

Not all commissions or probe teams, however, are appointed to inquire into a matter fall under the Commissions of Inquiry Act.

The education sector has had many probe committees and task forces set up over the years in efforts to improve the education system. Examples of commissions set up in the sector which were governed by the Act, include the first post-independence Kenya Education Commission led by Prof. Simeon Ominde, and the Davy Koech-led Commission of Inquiry into the Education System of Kenya, appointed in 1998.

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“Rag-Tug” militia groups that control Kenya

1. Mungiki
2. Kalenjin Worriors
3. SDLF
4. Taliban
5. Chinkororo
6. Baghdad Boyz
7. Kamjesh
   

MUNGIKI

It is Kenya’s most feared militia whose operations are concentrated in the Mt. Kenya region of Central Province, Nairobi and parts of Rift Valley Province. Mungiki is reputed for its organized operations and fundamentalist believe in traditional “Kikuyu” religious lifestyle. They pray while facing Mt. Kenya, the perceived abode of Ngai, the Kikuyu Supreme Being. It divided into 3 major arms: Religious, Political and Military wings. In tune with the inevitable changes at the global arena, Mungiki is reported to be silently sponsoring some of its young members for higher studies in some socialist-leaning countries in Latin America as part of a strategic plan to acquire power.

Its men are reported to have a hand in the Naivasha and Nakuru killings in January this year at the height of the post-election violence. It took the intervention of the Kenyan military from the nearby Lanet barracks at the heart of Nakuru town to quell the unrest. Apart from its religious fanaticism, it is monied and controls huge chunks of land in major parts of Kenya. Mungiki is in-charge of nearly every bus terminal in Kenya where Matatu operators are forced to part with several hundreds each day as “protection fee”. Landlords in many middle and low-class estates are likewise but silently forced to finance the group.

The original members of the group were sons and daughters of Mau Mau group, freedom whose forefathers they claim were sidelined soon after independence by President Kenyatta regime. Mungik, which when translated means “a united people”, advocates for female circumcision and a return to Kikuyu traditional way of living.

Kalenjin Warriors

It is said to be community defense group along the conservative traditions of the Rift Valley-based community. Among the Kalenjins, military training forms an integral part of the graduated progress from childhood to adulthood. Young men in these ethnic groups, where tradition demands a strict respect of hierarchy and obedience to community’s elders, also undergo circumcision as a rite of passage. As a result, young Kalenjin men develop a sort of cohesion among persons of the same age group making it quite easy to mobilize during a call for action.

The weapons of choice for the Kalenjin warriors are spears, bows and poisoned arrows, machetes and clubs. Just as Mungiki, they are relatively organized and well funded by members of the Kalenjin political elite, some of who rose from rags to riches during the Moi (a Kalenjin from Tugen sub-tribe) regime.

Sabaot Land Defence Force

Known by its acronym, SLDF, the militia has been behind the long-drawn armed conflict in the highly-volatile Mt. Elgon District. It was formed by members of the Sabaot community with a view to fight against historical injustice over land allocation in the Chebyuk settlement scheme. The conflict mainly orbits around two main (Sabaot) clans - the majority Soy clan and the minority Ndorobo clan.

The SLDF is one of the few non-state groups in Kenya that possesses firearms. Unconfirmed reports suggest the group's arsenal includes automatic rifles and rocket-propelled grenade launchers, which are said to have made their way from neighboring Uganda and Southern Sudan.

Chinkororo

Chinkororo, outlawed in the 1990s, represents the armed wing of the Abagusii community, which is found in several districts in Nyanza Province. Traditionally, Chinkororo was a community defense force, guarding territory against cattle rustlers and other perceived "enemies". The group also undertook retaliatory attacks whenever there were raids in Kisii areas. Since the post-election violence, elements of the Chinkororo have engaged in clashes with Kalenjin warriors from the neighboring Sotik and Buret districts in the Rift Valley Province.

In the run-up to last year’s general election, the group was behind a spate of armed attacks against opposition candidates who were seen as serious challenger to then Road minister Simeon Nyachae’s dominance of Gussi politics. Machetes, spears, clubs, bows and arrows are some of the weapons used by the feared armed militia.

For the last two decades, Gusii politicians have taken advantage of their financial well-being to manipulate the militia with a view to tilt the balance against their opponents. With the exit of (larger-than-life) Nyachae, one of Kenya’s richest personality and Chinkororo’s chief financier, it remains to be seen how the group will continue with its operations.

National Republican Movement/Council

It came to the limelight two years ago after the police raided its military training ground in the coastal district of Kwale. Retired military officers from the region are said to be behind its operations whose ultimate goal is to overthrow the Kenyan Government. In June 2007, police launched a manhunt in the region for suspected members of an illegal group; however, charges against the group members were dropped after they had been held in remand prison for several months.

A brother of Cabinet minister Ali Chirau Mwakwere, who was the alleged ringleader of the group in Mulungunipa forest, is still at large. He is a former soldier said to have been sacked from the armed forces on disciplinary grounds.

Taliban

After Mungiki, the best-known urban armed group is the Taliban, predominantly Luo and active in Mathare, Huruma, Baba Dogo, Kariobangi North and Kariobangi South quarters of Nairobi's Eastlands district. Members communicate and identify themselves via a system of secret hand signals. Like Mungiki, the group runs extortion rackets, notably on public transport operators though today its influence has been almost entirely curtailed by their Mungiki rivals. Apart from Kibera and Mathare North terminus, the rest of bus stages in Nairobi City are in the hands of Mungiki.

Taliban has no membership oath or cells anywhere in the country, but it does have squads in various slum locations. Its leader is still in jail following the 2002 skirmishes with Mungiki over the control of public transport along Nairobi’s Juja Road.

Baghdad Boyz

Its main base is in Kisumu and it draws its membership from the Luo community. The vigilante is very active in Kibera, Kenya's largest slum.

When violence broke in Kisumu City and its environs on December 29^th 2007 following the disputed presidential election results, Baghdad Boyz led the looters who ravaged shops in the City centre. The looting inflicted huge lost to the towns economy, which experts have estimated to be in the region of Ksh6 billion apart from rendering many other young Kenyans jobless. The group works closely with another predominantly Luo militia, Kosovo Boyz, and known for its expertise in using sling stones.

Jeshi la Mzee a.k.a Kamjesh

Just like most of the Kenyan rug-tag armed groups, its operations are concentrated in slums, mainly Kangemi and Kawangware. The group is said to give indisputable loyalty to abrasive Westlands MP Fred Gumo. It is known to terrorize candidates during the run-up to general elections. Gumo has in the last two decades maintained his position as the group’s de facto leader and financier thus keeping a firm grip on the politics of Westlands constituency. The group’s membership is predominantly Luhya, Gumo’s tribe.

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Rift in the Rift

Rift Valley is arguably Kenya’s most politically-explosive region. It has had its share of powerful personalities including the larger-than-life former President Daniel Toroitich arap Moi. Most power-brokers of yesteryears are either dead or virtually extinguished from active politics. Today the region’s politics is dominated by young, vibrant and highly-intelligent politicians whose influence is growing by day.

In a solidarity last witnessed during Moi’s heydays as the de facto Kenyan leader, the young politicians campaigned for ODM and its Presidential candidate Raila Odinga and delivered almost the entire 2 million-plus Rift Valley vote as a bloc.

Less than four months down the line, however, that unity is on a melting down. The expansive province stands divided into three factions. One faction is allied to Agriculture minister and Eldoret MP William Ruto and his Industrialization counterpart and Tinderet MP Henry Kosgey, the second is largely composed of South Rift Valley MPs who claim to have been sidelined during the naming of the Grand Coalition Cabinet. The third axis revolves around Central Rift MPs allied to President Kibaki mainly from Nakuru and Laikipa districts where majority of Kikuyu Diaspora resides. The two districts are also home to majority of IDPs and are known for sporadic clashes pitting members of the Kikuyu community against their Samburu counterparts.

The region is equally divided over the potentially explosive IDP resettlement agenda that was the subject of a meeting convened by President Kibaki and Prime Minister Raila Odinga at KICC on Tuesday, April 23, 2008.

While the Nakuru-Laikipia camp, led by Water and Irrigation Assistant minister Mwangi Kiunjuri wants an “immediate and unconditional” resettlement of the IDPs, their south Rift counterparts are against any sort of resettlement until some “conditions” are met and serious historical matters addressed via the yet-to-be established Truth, Justice and Reconciliation Commission (TJRC). The establishment of TJRC could be a bitter pill for ODM’s Rift Valley MPs. Tough-talking Justice minister Martha Karua and a staunch supporter of President Kibaki on Tuesday, 22 publicly stated that perpetrators of post-election violence would be prosecuted.

Kiunjuri who is also the Laikipia East MP argues that the displaced Kenyans have a “constitutional right” to settle back to their previous land as the legal holders of the title deeds. The Kikuyus bought the chunks of land in dispute from “white settlers” who disposed the land upon Kenya’s attainment of independence on a “willing-seller-willing-buyer” basis. But they only bought the title deed and not the land (soil), goes the argument by traditional Kalenjin elders.

It is imperative to note that Ruto, Kosgey and Kones, all in the new cabinet are behind Kibaki and Raila on how members of the new cabinet were picked. They were equally in tandem with their respective party leaders that the IDPs be resettled immediately even when the matter was put to a vote at the KICC meeting.

The South Rift camp is mainly made up of MPs from the Kipsigis sub-tribe of the larger Kalenjin tribe. Franklin Bett is a former Private Secretary/Comptroller of State House and many had expected him to get a slot in the new Cabinet. However, his alleged link to the planning and funding of the Rift Valley violence could have prompted President Kibaki and Raila to sideline him in the new line up. His Chepalungu counterpart, Isaac Ruto (former Minister for Vocational Training) could be finding it hard to come to terms with how he missed on the new cabinet line up in spite of his solid backing of ODM and his firm standing at the Bomas Constitutional Conference when the Kibaki ministers decided to mutilate the Draft Constitution that had the support of the majority Delegates/Kenyans.

Analysts, however, see the marginalization of the South Rift as a silently but well-calculated scheme by (William) Ruto to surround himself with North Rift MPs with a view to maintain grip of the region’s politics. Others say the plot could prove counter-productive if Roads minister Kipkalya Kones were to fall out with (William) Ruto as this would elevate him (Kones) as the de facto leader of the South Rift, effectively creating a parallel power-center corresponding in influence to Ruto’s.

On his part Raila, known for skillful political tactics in mending with rivals, is said to have mandated ODM’s top brass to convene a meeting whose agenda is to quell a simmering split within the party. It is interesting to remember that a similar meeting ahead of the December poll salvaged ODM at a time when a party split looked almost certain following a chaotic primary that saw several winners denied nomination certificates in favor of Raila’s preferred aspirants who had openly lost to newcomers. Raila prevailed on losers by promising them jobs in “my new Government” with the assumption that he would win the Presidency. He failed in his journey to State House.

Many had thus expected him to use the chance provided by the Grand Coalition to secure jobs for his allies. This could have been the reason why Raila came under intense pressure from ODM members to push Kibaki to cede to tough demands based on a 50-50 basis on the sharing of all Government positions including the Civil Service, Provincial Administration, Ambassadors/High Commissioners and heads of Parastatals/State Corporations. To date, Kibaki maintains the Civil Service is above party politics.

Even so, most of the serving PSs as announced on Monday are Kibaki allies who have had a long-stint in the Civil Service or Institutions of Higher learning – Francis Muthaura (past retirement age), Crispus Kiamba (former University of Nairobi Vice-Chancellor), Joseph Kinyua (Treasury and past retirement), Thuita Mwangi (Internal Security) , Karega Mutahi (Education and past retirement), Patrick Nyoike (Energy and past retirement), and Ms Beatrice Naliaka Wasike, (Labour and an ardent PNU supporter who was dropped from being nominated to Parliament in preference for former Local Government minister Musikari Kombo who lost his Webuye seat).

Grumbling from the powerful grouping of Rift Valley MPs over the new list of PSs is also a matter that could prove explosive. Isaac Ruto claims that most of Kalenjin technocrats were dropped and replaced by technocrats from other communities.

Kibaki and Raila have decided to go against the wishes of South Rift leaders to postpone their tour of the region will on Thursday, 24, be visiting IDP camps to familiarize themselves with the real situation facing the refugees.

The step the two would take after the tour will greatly shape the politics surrounding the new Coalition Government. Infighting within the Grand Coalition is expected to go a notch-higher once Kibaki releases a new line up of Ambassadors/High Commissioners.

Ends…

Kenya's 10th Parliament

Pressure is mounting on President Kibaki to recall Parliament in order to embark on a process that will give birth to some very crucial constitutional reforms that would, perhaps, unlock the current political impasse over the disputed Presidential election results. The push to have such reforms was recently affirmed by Speaker of the National Assembly Kenneth Marende, who is said to have told an informal closed-door session between Kenyan MPs and Koffi Annan that “the National Assembly is willing and ready to play its rightful role in finding a sustainable and lasting peace for our country”.

Parliament will be seeking to ratify – through constitutional amendments - the steps of a political agreement between the ruling Party of National Unity (PNU)/Government side and ODM, the Official Opposition in Parliament. Lawmakers will be expected to unanimously support whatever political settlements the negotiators will agree under the Annan-led initiative by quickly adopting and passing the necessary bills.

But serious handles stand in the way of the 10^th Parliament since Kenya gained independence from Britain almost half a century ago. Ethnic hatred and tension among legislators is at an all time high. Suspicion and mistrust reigns supreme among honorable members of the National Assembly.

According to a hint, given by none other but Annan, we may all have to settle for a “Grand Coalition” made up of Government and the Opposition. Two years down the line, says Annan, Kenyans should be able to heal and go for a fresh poll without tearing themselves apart. To accommodate such, as per Annan’s view, more (powerful) positions would be created to bring on board ODM’s top brass, Raila included. Such positions would consist of a Prime minister, his two or three Deputies and one more Vice-President. There are indications that the VP position could be phased out and replaced with a Deputy President with clearly defined job description. The Executive would thus constitute President and his two Deputies, Prime Minister and his three Deputies and the Cabinet.

To say the least, such radical proposals would require constitutional amendments. As per the current standing orders, any constitutional amendment has to attract the support of no less than two thirds of MP which translates into 144 members. As we stand today, neither PNU/Government nor ODM commands such a majority. What we have is a very slim majority that could be turned around any day courtesy of personal and parochial interests. The Government side (PNU and its affiliate parties) and ODM are locked in a game of numbers. Both parties have 102 members while six seats are still vacant. They are Kamukunji and Embakasi in Nairobi, Wajir West in North Eastern, Kilgoris and Ainamoi in Rift Valley. ODM lost two of its members while Emuhaya seat fell vacant following the election of Marende as the Speaker of the National Assembly. The Electoral Commission of Kenya (ECK) ordered a repeat of parliamentary elections in the other three constituencies following clear evidence of electoral malpractices.

Unless hardliners on both sides give away concessions, Kenya could be headed for another round of a serious political stalemate, bigger and with far-reaching effects than what was experienced in January.

Time will be of great significance. Under the standing orders (Rule Book of Parliament), there are four sittings each week. Government business is conducted in Parliament on Tuesday, Wednesday and Thursday afternoons 2.30 pm to 6.30 pm. On Wednesday mornings, Parliament sits between 9.00 am and 12.30 pm for what is called Private Members Business to address issues brought by back benchers. Kenya Parliament, therefore, works very short weeks and ultimately years. So commitment to the (reform) cause must be highly exhibited by all MPs.

At the end of the day Parliament must decide, through necessary legislations, whether the country should adopt a parliamentary system of government, in which a Prime Minister is appointed from the majority party in Parliament and the President remains more or less ceremonial and who between the PM and the President should weird more powers. This is where the most probable stalemate will emanate from.

Another option would be to go for a hybrid system in which executive authority is shared between the President and Prime Minister in the model of the French system. PNU/Government, however, want the Tanzanian model where President is the head of state and government and has powers to appoint his PM.

The powers of Parliament should be defined as to which appointments to be vetted by the August House. With ODM still silently pushing for Kibaki exit, a key proposal would be for Parliament to have unlimited powers to control its own procedures and calendar through Standing Orders. This would enable ODM to push for a vote of no confidence motion without subjecting MPs to another poll before the lapse of the five-year term. PNU/Government is very keen on this and will vehemently object to such a proposal.

ODM want a reformed judiciary due to numerous petitions at the High Court over the just-concluded polls. Raila has on several occasions publicly expressed his lack of faith in the courts as an option to justice. Raila is of the opinion that Parliament should be given powers to vet the names of nominees to the judiciary before they are gazetted.

ODM leaders are of the opinion that the ultimate decision to commit themselves to resolutions of the National Dialogue and Reconciliation Committee headed by Annan would be made by their supporters countrywide. How they intend to do so is a matter yet to spill to the public domain. It would be a kind of a (party) referendum. Hardliners within ODM are of the opinion that all past injustices must be addressed including the last election. In other words, the outcome of the December poll must be addressed to the satisfaction of all Kenyans countrywide.

MEANWHILE, the PNU/Government side is to be opposed to a Grand Coalition with ODM. According to PNU insiders, bringing in Pentagon members and other top ODM luminaries in Government would make it hard to pursue architect of post-election violence that rocked the country a month ago. Some like Ruto, Kosgey (MP Tindrett), Ntimama (MP Narok North), and Kones (Buret) are among top on the list of politicians who the Government believes perpetrated violence and even bankrolled militia whose orgy of bloodshed cost the lives of more than 1000 Kenyans.

As a result, PNU want the mandate to decide who joins the Cabinet to remain the preserve of the President (Kibaki). This is seen by many observers as a way to create a way for Kibaki to reject overtures to appoint some top ODM leaders who the Government is keen on prosecuting owing in respect to their role in post-election violence.

These, coupled by a string of legal technicalities likely to arose, are some of the issues that Parliament would have to surmount to break the current political deadlock.

Ends…

Post-election fiasco

Kenya’s 2007 general election will go down into the annals of history as the most competitive as well as the most controversial ever. Never in the past has an election been so close to call. Kenyans, young and old, came out in large numbers to express their wish with optimism that their long-awaited aspirations would soon become a reality. But all that is now over-shadowed by the chaos that erupted soon after the announcement of the Presidential results by Electoral Commission of Kenya (ECK), giving President Mwai Kibaki a second five-year term in office.

From Mombasa in Coast Province to Malava in Western, Kenya is on fire. Thousands of Kenyans are now refugees in their own country after they were flushed out of their own land, apparently, for having voted for the “wrong side” (the incumbent). In the end, Kenyans have reaped the fruits of what they sowed - ethnicity whose end results is death and more deaths.

Ethnic Rivalry

The on-going well-calculated massacres mostly rocked Nairobi, Nyanza and Rift Valley regions, prompting the question why? The main protagonists have been the Kikuyu, Luo and Kalenjins and in some instances Kisiis. Why three region and three communities?

Raila Odinga’s ODM draws its fanatical support from Luo Nyanza and North Rift, the heartland of the latest skirmishes that started as soon as Kibaki was declared the winner and minutes later went on to be sworn-in for his second and final term. Kibaki’s PNU has Central Province and Upper Eastern as its stronghold.

There has been a long-time perception that Kikuyus “took away” land formally owned by the Kalenjins in Rift Valley although the fact of the matter is that the occupants bought the land and are indeed legitimate title deed holders. Rift Valley is severally referred to as the “Kikuyu” Diaspora as many of them being natural farmers and businesspersons gradually acquired chunks of land in the region through state-owned Agricultural Development Corporation (ADC). But the ethnic rivalry first came into the limelight during the Moi regime when the retired President used ethnicity to consolidate power. Through his lieutenants, Moi staged the infamous 1992/97 ethnic cleansing that displaced thousands of Kikuyus – who by then were diehard opposition supporters - and in the end denied them a chance to vote, tilting the ballot in his favor. Apart from Kikuyus, Kisiis, likewise an agricultural community, is the only other community to have been tempted by the fertile soil of Rift Valley. They too, have not escaped the blunt of ethnic animosity that have raged across the vast region. They have been targets of rug-tug militiamen operating in Kuresoi and Molo, Buret and Bomet constituencies.

For the Luos, their rivalry with Kikuyus is historical. It started soon after independence following the fallout between President Kenyatta and his VP Jaramogi Oginga Odinga, Raila’s father. The acrimonious parting took place in Kisumu when Kenyatta went to open the Kisumu Provincial Hospital popularly known as “Russia” as Jaramogi used his USSR connection to raise funds for its construction. The Luos heckled the then bigger-than-life Kenyatta who responded by ordering the army and the dreaded General Service Unit (GSU) to action, prompting the death of many Luos. A perception has grown that though Jaramogi assisted Kenyatta to become Kenya’s first President, the former rewarded him by sidelining him and his community. Jaramogi had been implored by British colonialist to form a Government but back-off “until Kenyatta was released from prison”. In essence he stepped aside for Kenyatta.

Moi followed Kenyatta’s steps by putting him under home arrest after the infamous 1982 attempted coup in which Raila was detained as the ring leader. Raila and Moi were later to join hands after the 1997 election which culminated by the latter dissolving his National Development Party (NDP) to take a ministerial position in Moi’s government on promise he would be his obvious successor but eventually, Moi opted for Uhuru Kenyatta, a political nonentity by then. Raila, a shrewd politician as he is, teamed up with Kibaki (a Kikuyu) on agreement that he would be a one-term President and in-between he would appoint him Prime Minister. Kibaki never lived to those promises. Raila turned into a fierce critic of Kibaki, in spite of being a Cabinet minister, seriously putting the relations between the two communities – Luos and Kikuyus – at all time low.

Stand-off

What Kenyans treasure most is “peace and economic stability”. Putting a meal on table, seeing their children going to school and a decent roof top is dear to any Kenyan. However, the current political impasse is almost robbing them that treasure and is indeed threatening to tear apart the nation.

Kibaki is ECK winner of the 2007 election while Raila is “people’s choice”. But what is the way forward for Kenya?

First, Kibaki has taken the oath of office and is thus, legally, the President of the Republic of Kenya and all others are constitutionally bound to accept that verdict unless it is overturned by a court of law. Raila must therefore negotiate with Kibaki to break the stalemate; otherwise the country will continue bleeding. By law, Kibaki is his senior.

I am of the opinion that a workable solution still stands to save Kenya from the bad image it has ‘purchased’ in recent weeks. The two leaders must accept that Kenya is bigger than their political ambitions.

A coalition government in with Raila as VP could be an option. However, the ODM de facto leader has rejected this offer. In the event of such an arrangement, Kalonzo’s ODM-K would automatically assume the position of the leader of the official opposition in parliament.

Another option would be to convene parliament with one agenda in mind, constitutional amendment. Such an amendment should border along the Executive. May be, MPs should toy with the idea of having an executive President (with limited powers) and two Deputy President (not Vice-President) with clearly defined duties. Also, legislators should introduce the post of a non-executive Prime Minister with two Deputies, again, with clearly defined duties. A clarification should be made as to whether the PM and his Deputies should be answerable to the President or Parliament. The new law should, likewise, stipulate who between MPs and the President should be the appointing as well as the firing authority. Other issues that Raila would take to the negotiation table are the control of parliamentary calendar, which legislators have unsuccessfully sought to wrestle from the President and a permanent date for the General Election.

A third option would only be viable if the two leaders fail to break the stalemate. This brings in the possibility of a coalition between Kibaki and ODM-K’s Kalonzo Musyoka with the latter as the VP. By entering into such an arrangement, the two would be bracing for a battle of a lifetime on the floor of parliament where Raila’s ODM commands a slim majority. It is imperative to note that ODM prides itself some of the most gifted and educated politicians in the likes of Lawyer James Orengo (Ugenya MP), Prof. Peter Anyang’ Nyong’o (Kisumu Rural), Otieno Kajwang’ (Mbita) and William Ruto (Eldoret North). The Government would find it quite tricky in passing key bills in parliament.

Another option would for Kibaki to step down and call a fresh election. But legal technicalities still stand on the way as to whether it is possible to call a Presidential poll without necessarily dissolving parliament, saving the MPs-elect the burden of going it all over again to seek fresh mandate. Constitutionally, the two should be conducted together. Kibaki’s men would in no way agree to follow this route as a re-run would record a low voter turn-out.

It is imperative to note that time is running out for Raila Presidency and the game plan for 2012 politics could be totally different from 2007. Raila might not be the favorite candidate and Central Kenya could push for a non-Kikuyu for Presidency to brush aside the notion that they cannot support anyone apart from one of their own as a strategy for 2017. I foresee a Kalonzo-Uhuru Presidency quite feasible not very far in the future. The two have a soft spot for each other and attract support from across the country and are untainted by corruption.

Ends…