IN A MARRIAGE OF CONVENIENCE, TWO CENTERS OF POWER CAN BE CONTRADICTIOUS-WHO IS IN CHARGE?

The power tousle that embarrassed the country last week when Raila suspended two cabinet ministers: Agriculture Minister William Ruto and Education Minister Prof. Samuel Ongeri; and Kibaki revoking- is really the question of power struggle in disguise.

The two principals keep sparring at each other in search of power space. Ever so carefully, trying to out maneuvre one another, as long as they are stack in this marriage of convenience.

It cannot be otherwise. Of necessity, two centers of power are problematic, can be contradictious-leading to a dysfunctional government. Especially as in this case, where the coalition government was haphazardily put together on the eleventh hour, to put an end to the violence and the madness that had engulfed Kenya following the 2007 elections, that had gone bad.

On the question of putting an end to the culture of impunity, Raila’s move; on its face value was the right way to go. His method of execution is what is questionable. PM should have consulted with the President before openning himself up for personal embarrassment. By making unilateral decisions at that high level of government without first checking it out with his superior, Raila was effectively and shrewdly attempting to usurp the president’s powers.

The National Accord and the Reconciliation Act of 2008; as entrenched in the Constitution, is the law governing the Kibaki / Raila grand coalition Government. The wording of this document is quite clear:

In section 3(1): There shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers who shall be appointed by the president.

Its obvious that the appointee cannot be an equal of the appointer in this respect and therefore; according to the law, the President is superior to the Prime Minister.

If Raila did what legally he could not do, his suspending of the two ministers was of no consequence and Kibaki’s countermanding was proper.

In section 4(1)-(a) it states that: the Prime Minister shall have the authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya including those of the Ministries. This section does not give the PM the powers to either appoint or dismiss the cabinet ministers.

In fact, the language of section 4(2) explicitly states that the president has the overall authority on the appointment of all the ministers.

Indeed section 4(1)-(c) directly subodinates the position of the Prime Minister to the presidency: “Prime Minister shall perform such other duties as may be assigned to him by the president–“.

The question is obvious. Did Raila do the right thing in suspending the two ministers? Yes, because his heart was at the right place- put a stop to corruption.

Did he have the power and authority to do so? According to the law as stipulated in the National Accord and Reconciliation Act (2008), and entrenched in the constitution, he didn’t.

Had Kibaki demurred, it would have set a bad precedence that could later udermine the rule of law in the country. What if Raila later appointed two more ministers and fired another five?

The boundaries and constrains of power and authority as provided for by the constitution are the hall mark of a civilized and orderly society. Its not just the question of doing what is right, its also doing right- the right way.

Raila’s good intentions, if advanced without necessary consultations and with respect to law, could have very bad repercussions for the country.

Njau Njembura Njoroge.