Folks,
The author here talks about legal merit, facts of which is neither here nor there. The author goes on to state that the President is Head of the Government, which is true in an authenticated legal merit where people elect mandate is respected. But in the prevailing circumstances, peoples mandate was not respected, and therefore Kibaki Government is not legitimate. There are evidence that proved election was stolen, and by coup Kibaki and PNU foes installed themselves into leadership illegally.
In extension, and for the sake of peace, Kofi Annan together with Eminent leaders stepped in to save a situation and to avert more shedding of blood and loss of lives.
The election of 2007 was disqualified and by consultation and for purposes of peace, the ACCORD was signed between Raila ODM and Kibaki PNU before Kofi Annan with other Eminent leaders. By authentication, Raila and ODM merited ownership of Presidency and Official Leader of Bussiness matters because they had doubled the number of elected members compared to Kibaki and his PNU foes, an indication that they were the winners of the disputed election. In other words ODM had more numbers in the Parliament than PNU, the only way Kibaki retained leadership is by fraud.
Consequently, The National Accord and Reconciliation Act (2008), was formalized for purposes of creating conducive environment for dialogue, where peace would be restored and the Constitutional Reform Order be completed within a period of six months, so a repeat of election could be called. However, the Judiciary legal institution dragged their feet with unwarranted delaying tactics where we saw Martha Karua and others hope and skip to buy time. As we all awaited eagerly, one year past and the Reform Agenda was technically put in abeyance.
Without looking at the legal jargon, in simple terms and in all fairness, the coalition government was constituted so PNU and ODM between Kibaki and Raila share 50/50 a Government in waiting. I would rather the author of this document in his understanding, explain to the people or better still, design logistic methodology of an understanding meaning of 50/50 share. We just want a fair share of debate here, considering that the general public are very angry that their votes were stolen and that they have all along been taken in circles of roller coster in an empty stomach. They have a right to know who is messing up with their livelihood.
Basically, we all want to see in action PM Raila in his jurisdiction performing in the Coalition Government. If after one year, President Kibaki in the first session played PM Raila a dumb, then I do not see the reason why as a co-partner in the signed accord, he Prime Minister should not step in to occupy a position which by right and by virtue belongs to him. Kalonzo Musyoka in essense is a spoiler and a non-entity here.
Evidently, there is no reason for redrafting an ACCORD, because Kibaki’s Presidency is not legit, he therefore, has no supreme powers (as the author states) to dictate or order (this is where the ACCORD comes in) – any matter that is disputed, should go to the house for debate and be determined by vote in Parliament.
There is no way you can treat a criminal thief with prominency when in actual fact he does not deserve it. It is foolshardy. Kibaki and PNU were just given a benefit of doubt to get by. That does not mean they have a right to bully.
Thanks,
Judy Miriga
Diaspora Spokesperson
Executive Director
Confederation Council Foundation for Africa Inc.,
USA
http://socioeconomicforum50.blogspot.com
ODM has no legal merit for Raila to take over top Parliament job
PLO Lumumba
Listening to MPs debate who should be the Leader of Government Business in the House on Thursday was embarrassing. It was equally shocking that some MPs are incapable of comprehending the laws and Standing Orders they themselves made.
It is true the 2007 elections were bungled. It is also true Kenyan politicians led by President Kibaki and Prime Minister Raila Odinga were essentially compelled by the international community to enter into an accord. It is also true the two competing parties, PNU and ODM, sent negotiators, who arrived at an agreement reduced into the National Accord and Reconciliation Act 2008 and The Constitution of Kenya (Amendment) Act 2008. These introduced Section 15A, which provides that inter alia: There shall be a Prime Minister of the Government of Kenya.
Section 3(1) of The National Accord and Reconciliation Act states: There shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers, who shall be appointed by the President in accordance with this section.
A proper and honest reading of the law as negotiated clearly shows the position of the President, as Head of State and Government did not change. It may be true the parties’ intended otherwise but the law remains, which is an indictment of the negotiators, particularly the ODM team.
The Constitution provides at Section 23 that: (1) The executive authority of the Government of Kenya shall vest in the President and, subject to this Constitution, may be exercised by him either directly or through officers subordinate to him; (2) Nothing in this section shall prevent Parliament from conferring functions on persons or authorities other than the President.
Conversely, the Accord Act Section 4 spells out as follows: (1) The Prime Minister; (a) shall have authority to co-ordinate and supervise the execution of the functions and affairs of the Government, including those of Ministries; (b) may assign any of the co-ordination responsibilities of his office to the Deputy Prime Ministers, as well as one of them to deputise for him; (c) shall perform such other duties as may be assigned to him by the President or under any written law.
The upshot of the above is that under Kenya’s hybrid system of government, the President is the Head of Government and its leader. The problem currently pre-occupying Parliament only arises because traditionally the President does not attend Parliament except on State openings. That is why he designates a minister, who is his principal assistant by virtue of Section 15 (3) of the Constitution to be the Leader of Government Business in the House.
In light of the law, the argument that the PM should be the Leader of Government Business has no merit. The only instant when the PM or any other minister may be Leader of Government Business is when designated by the President in accordance with the amended Standing Orders. What is clear is that there is a subtext to the debate, which is but a red herring. The truth is ODM realises it had a bad deal. In its mind, which is unsupported by the law, there is an institution of co-presidency.
The writer is an advocate of the High Court.
‘Accord loophole only recognises PNU as Government’
By Gakuu Mathenge
Prime Minister Raila Odinga will officially secure two slots to address Parliament twice a week if he succeeds in his quest to become Leader of Government Business in the House.
At the same time, a senior Kanu official says to unlock the impasse over the position’s dispute, Parliament should pass a vote of no confidence in Vice President Kalonzo Musyoka if it does not approve his leadership of House Business Committee. He said the accord may not provide much room for ODM’s case.
The new Standing Orders have set aside 45 minutes every Wednesday, designated as Prime Minister’s time.
Standing Order No 40 says in part: “Notwithstanding Standing Order 36, there shall be time to be designated the Prime Minister’s time commencing 3.30pm every Wednesday…the time shall not exceed 45 minutes…”
Standing order 36 (4) says in part: “The Leader of Government Business shall, every Thursday, or the last day of the week, before commencement of business, for not more than 15 minutes, present and lay on the table, a statement informing the House of the business coming before the House in the following week.”
Parliament was last week deadlocked over the appointment of the chairman of the House Business Committee, who doubles up as Leader of Government Business in the House.
Failure to form the committee means the House remains in abeyance, until the matter is resolved.
ODM insists the PM, being the supervisor and co-ordinator of Government functions, should head HBC but PNU argues it is the prerogative of the President to appoint HBC chairman.
Accusations of impunity
While the dispute is based on different interpretation of the National Accord, Kanu Organising Secretary Justin Muturi says Parliament is engaging in a wild goose chase debating the President’s appointment of Kalonzo as leader of House Business Committee.
“The debate was futile as they cannot dictate to the Executive who to appoint to any office. The only option available to MPs is to a pass a vote of no confidence in a presidential appointee,” the former Siakago MP said.
Muturi, a lawyer, says the current confusion and failure by the National Accord to define Government to mean both ODM and PNU should be blamed on ODM legal advisers.
“Unless the National Accord is redrafted, its current form designates President Kibaki and PNU as the Government. President Kibaki and Prime Minister Raila Odinga will have to use other means to unlock the impasse as the National Accord is not useful to ODM,” Muturi added.
The National Accord and Reconciliation Act (2008), which came into effect on March 30, last year, shows President Kibaki signed it on behalf of “Government/Party of National Unity”, while Raila signed on behalf of the Orange Democratic Movement, with President Jakaya Kikwete and Dr Kofi Annan as witnesses.
The VP, deputised by a Cabinet colleague, traditionally holds the Leader of Government Business position but there have been exceptions in the past. When former President Moi took 13 months to re-appoint, Prof George Saitoti as V-P, after 1997 General Election, he appointed ministers to head the HBC on monthly rotational basis.
The new Standing Orders define Leader of Government Business as a minister appointed by Government to the position.
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Date: Sat, 25 Apr 2009 21:50:50 -0700 [04/25/2009 11:50:50 PM CDT]
From: jbatec@ . . .
Subject: Kibaki Must Not Dictate Terms
