A RESPONSE TO ATTORNEY-GENERAL AMOS WAKO: PRIME MINISTER IS THE PRESIDENT’S EQUAL

By MIGUNA MIGUNA, BA, LLB, LLM
Barrister, Solicitor & Advocate of the High Court
Prime Minister’s Advisor on Coalition Affairs &
Joint Secretary to the Permanent Committee on the Management of Grand Coalition Affairs
Issued at Nairobi on February 16, 2010

Kenya’s everlasting Attorney-General, Amos Wako, is better known for his contagious smiles than for ground-breaking legal interpretations or decisive action against graft.

Kenya’s chief legal officer and prosecutor appear vast in the rigmaroles of political survival than in the intricate webs corruption has constructed within our public institutions.

On matters of political intrigue and expert legal mimicry, Mr. Wako is perhaps the most dexterous among all my professional colleagues. He can read the political wind like a magician. And his lips assume the artificial vigour of an excellent puppeteer when his political masters call.

I am not saying these things because I dislike Mr. Wako; few Kenyans suffer from such afflictions. Mr. Amos Wako is not just a friend of mine; he is my senior colleague. As a gentleman of the old school, I hold him in high esteem.

Before I sat down to prepare this statement in response to what Mr. Wako said yesterday with respect to the meaning of the National Accord and Reconciliation Act (2008) vis-à-vis the conflicting orders issued by the Two Principals in the Grand Coalition Government, I shuddered. I shuddered because among the permanent bureaucratic faces in the Grand Coalition Government, Amos Wako is closest to me.

However, Mr. Wako’s latest attempt at interpreting the National Accord and Reconciliation Act (2008) has compelled me to respond.

I understand that both Mr. Wako and the Justice Minister Mutula Kilonzo were part of the drafting team that prepared the National Accord. If this is true, Kenyans must hold them directly accountable for all the loop-holes and deficiencies that they now claim are in that document.

The question Kenyans must ask Wako is this: where was he all this time? Why has he come out now to attempt an interpretation?

If Wako wanted a credible interpretation that most Kenyans would trust, he ought to have had that done by a non-partisan professional; preferably a non-Kenyan. Because he has not done that, Kenyans are entitled to read politics all over Mr. Wako’s political interpretation.

Firstly, Wako asserts that the President’s purported quashing of the Prime Minister’s three-month suspension of both William Ruto and Sam Ongeri from the Cabinet in order to allow for credible and independent investigations into corruption allegations against their respective ministries, senior officers and themselves personally amounts to a constitutional crisis.
Mr. Wako’s latest statement is the most embarrassing and scandalous utterance ever made by an Attorney-General in the Commonwealth. He should tell Kenyans clearly the nature of the Constitutional crisis and its genesis.

Without a doubt, we are facing a political crisis; a crisis caused by President Mwai Kibaki’s refusal to respect, honour and abide by all the terms of the National Accord, which was entrenched in the Constitution and therefore the supreme law of the land.

In the preamble to the National Accord, both the President and the Prime Minister stated that “given the disputed elections and the divisions in the Parliament and the country, neither side is able to govern without the other. There needs to be real power sharing to move the country forward.”

In that statement and commitment, both Principals recognized that they did not individually have a mandate of the Kenyan people to govern alone. They undertook, legally, constitutional and politically, to share real power so that the country could move forward.

Secondly, both Principals stated that the “coalition must be a partnership with commitment on both sides to govern together and push a reform agenda for the benefit of all Kenyans.”

Although Mr. Wako would like the country to believe that the President has more power and constitutional authority than the Prime Minister, the National Accord, which the President signed, clearly contradicts that belief. The National Accord is categorical that both the Prime Minister and the President are equals. That their relationship within the grand coalition is a “partnership” based on a joint “commitment” to “govern together.”

Section 3(2) of the National Accord explicitly provides that the Prime Minister is “the parliamentary leader of the political party that has the largest number of members in the National Assembly; or 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.”

In other words, the Prime Minister is a senior partner in this Government by virtue of being the leader of the largest political party in parliament.

Thirdly, with respect to the constitutional authority of the Prime Minister, section 4(1) provides that he “shall have authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya including those of Ministries.”

Strict legal interpretation of this section inevitably leads to the conclusion that the Prime Minister’s authority to supervise and coordinate the execution of all the functions of Government, including that of Ministries entails the power to conceptualize policies, allocate responsibilities, set standards, discipline, commend and do any such things that would facilitate the execution of all Government functions.

Months before the Prime Minister suspended the two Cabinet Ministers; the Government had ordered investigations and audit of allegations of graft at both ministries. And just over a week ago, the Prime Minister publicly announced, at a workshop of senior government officials that he officiated with the President, that had consulted with the President and recommended that both the Minister for Basic Education and his Permanent Secretary step aside in order to allow investigations over the alleged misappropriation of billions of shillings of the Free Primary School Education funds. These are public funds!

Kenyans noted that the President neither commented on the Prime Minister’s statement at the function nor refuted the Prime Minister’s assertion that they had consulted.

That was because the President was aware that section 4(1) of the National Accord gives the Prime Minister exclusive mandate and authority to discipline Government officers, including Cabinet Ministers that he coordinates and supervises.
A lawyer of Mr. Wako’s repute must surely know that without the power to discipline, supervision would be meaningless. He must also be aware that there is no constitutional provision guaranteeing the power of supervision, and by extension, discipline, to the President. If such a provision exists, some of us would be interested to know where it is.

Mr. Wako knows that section 4(1) of the National Accord does not contain the word “consult.”

Fourthly, section 4(5) of the National Accord provides that “the removal of any Minister nominated by a parliamentary party of the coalition shall be made only after prior consultation and concurrence in writing with the leader of that party.”

In plain language, the section means that the President cannot dismiss an ODM Minister without first obtaining written concurrence from the Prime Minister. Similarly, the Prime Minister cannot dismiss a PNU Minister without obtaining written concurrence of the President. However, both the Prime Minister and the President can legally dismiss the Ministers they appointed on their respective sides of the coalition without seeking or obtaining written concurrence of each other. Consultation and concurrence is only necessary if either principal want to dismiss or have dismissed a cabinet minister and senior public servant from his partner’s party.

In other words, legally and constitutionally, the President and the Prime Minister are equals in all respects. The announcement by Kibaki of the PM’s nominees for appointments is perfunctory.

Fifthly, regarding the formation of the Grand Coalition Government, section 4(2) of the National Accord states that “the persons to be appointed as Ministers and Assistant Ministers from the political parties that are partners in the coalition other than the President’s party, shall be nominated by the parliamentary leader of the party in the coalition.”

Once again, the National Accord is very clear that “the parliamentary leader of the political party” in the coalition is the person with authority to appoint Cabinet Ministers and Assistant Ministers.

Finally, section 4(3) provides that: “The composition of the coalition government shall at all times reflect the relative parliamentary strength of the respective parties and shall at all times take into account the principle of portfolio balance.”
In other words, the Constitution and the National Accord explicitly provides that the number of Cabinet and senior government positions by the two coalition partners must reflect their relative strength in parliament. It means that legally, the Prime Minister and ODM are entitled to more positions in Government than President Kibaki and PNU.

However, despite the foregoing explicit provisions, both the Prime Minister and ODM have, over the last two years, patiently waited for both President Kibaki and PNU to recognize, respect and uphold both the letter and spirit of the law.
It is now apparent that the Chief Government Legal Officer who is constitutionally mandated to assist in correctly interpreting and applying the law has not just failed to read and understand the law; but precisely because of that fundamental failure, he cannot properly advice the Government and guide the people of Kenya.

Under the circumstances, I urge my senior friend and colleague, Amos Wako, to publicly acknowledge that he has failed in his onerous duty and provide an opportunity for another worthy Kenyan professional to render his or her services to the motherland!

In conclusion, let me say that the ongoing altercation within Government is very unfortunate because it masks the primary reason for the Prime Minister’s reason: fighting corruption and impunity in Kenya. But it has been imposed on the Prime Minister and ODM by the President’s and PNU’s failure to honour the National Accord.

Fortunately for Kenyans, the Prime Minister has an illustrious history of fighting for social justice, respect for the rule of law and an end to corruption and impunity. That fight must continue.

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