In deed February 28th 2008 will go down in the History books of Kenya as a day when the political class did put aside their differences and put on paper an agreement intended to end the bloodshed that had threatened to shake the foundation of a rather quiet and lovable nation. In an unexpected turn of events, Emilio Kibaki agreed to sign an agreement that he had disowned just five days earlier. Many analysts are still trying to understand the reasons behind the change of heart. In this post, I intend to point out the key contents of this agreement that could turn out to be trouble if goodwill does not reign.
One such clause is the section on what the holder of the PM should be. Below is an excerpt from the signed agreement that touches on the holder of the position of the Prime Minister:
(2) The person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of -
(a) the political party that has the largest number of members in the National Assembly; or
(b) a coalition of political parties in the event that the leader of the political party that has the largest number of members of the National Assembly does not command the majority in the National Assembly.
It is important to appreciate that the talks were more about Raila and Kibaki than Kenya as a whole. With that in mind, it follows that if the agreement does not guarantee either one of them some power then it could easily be dishonored. From this excerpt and the basic mathematics in our parliament at this point in time, Raila could be the leader of the largest party in parliament but that party(ODM) does not control the majority in that parliament. What this means is that the PM could be the leader of a coalition if we go by part 2a of that clause. In a nutshell, the PM could be from either PNU-driven coalition or ODM-driven coalition. Whoever comes up with a coalition with that commands majority in parliament could be the PM, meaning there are no leadership guarantees here for Agwambo.
The second clause that could project problems for this agreement is the section on the dissolution of the coalition:
6. The coalition shall stand dissolved if:
(a) the Tenth Parliament is dissolved; or
(b) the coalition parties agree in writing; or
(c) one coalition partner withdraws from the coalition by a resolution of the highest decision-making organ of that party in writing.
One omission in this clause is what follows after the coalition is dissolved. Should there be an election or does the current life of parliament continue as it is? Part 6a has that taken care of by the current constitution which prescribes that in the event that a parliament is dissolved, then a general election shall follow. The subsequent areas of that clause (6b and 6c) are silent on what should follow this dissolution. The flipside of this is that even a day after this agreement is put in place and Raila becomes the PM with his ODM brigade having 50% of the government positions, PNU could withdraw or better still ODM could withdraw.
The last clause that was agreed on and could be tricky is the 8th Clause on the lifetime of that act:
8. This Act shall cease to apply upon dissolution of the tenth Parliament, if the coalition is dissolved, or a new constitution is enacted, whichever is earlier.
In the disgraceful event that PNU withdraws from the coalition, then the whole agreement/act becomes trash.
Am no lawyer but this agreement has quite a number of loopholes that give the political class room to play around with the intelligence of peace loving Kenyans. Too much room has been given to whoever feels like going against this hard earned consensus.
