Date:  Wed, 9 Apr 2008 13:02:33 -0700 (PDT)
From:  Kiambu Kengeru
Subject:  RAILA – KIBAKI LETTERS.

— On Wed, 4/9/08, Kiambu Kengeru wrote:

From: Kiambu Kengeru
Subject: MARTHA KARUA AND MUTULA KILONZO REMARKS;
Date: Wednesday, April 9, 2008, 7:56 PM
Kibaki / Raila Letters
7th April 2008

His Excellency Mwai Kibaki, CGH, MP

President of the Republic of Kenya

Office of the President,

P.O. Box 30510,

NAIROBI

Your Excellency,

RE: FORMATION OF THE GRAND COALITION GOVERNMENT

The meeting yesterday adjourned to allow for consultations
until this afternoon, after you declined further
discussions on portfolio balance and instead insisted on
your proposed allocation of ministries.

Our party is deeply concerned that the stalemate over the
formation of the Grand Coalition Government is increasing
uncertainty and anxiety in the country. It is also
escalating the mistrust that we as leaders were expected to
eliminate by the establishment of the Grand Coalition.

The National Accord and Reconciliation Act is already in
force. It must be understood that ODM and PNU are equal
partners in the Grand Coalition. The failure to form the
Grand Coalition Government is in fact a continuing breach
of the Act and the Constitution.

We have always acted in good faith and conveyed to Your
Excellency that the Grand Coalition would be one
government. The positions PNU is staking claim to imply
that we are forming a government with two cabinets. On the
contrary, this is a Grand Coalition of two equal partners
sharing executive power on a 50-50 basis.

It is becoming clear to our party that your side is
reluctant to honour the spirit and principles of the
National Accord and Reconciliation Act. I therefore wish to
let you know that the following issues must be resolved in
the course of our further consultations on the formation of
the Government:

1. The Current Cabinet

The current cabinet should be dissolved to allow for the
formation of a fresh Cabinet in accordance with the Act.

2. Portfolio Balance

Although we reluctantly conceded to an enlarged cabinet
against the wishes of Kenyans, our party now maintains that
the Grand Coalition Cabinet should not exceed 34 ministries.
Allocations of portfolios must be based on the agreement of
3rd April 2008 in which we agreed that the PNU side
nominates appointments in the Finance and Security
portfolios and in return, ODM would nominate Ministers to
the following portfolios:

· Local Government

· Foreign Affairs

· Transport

· Energy

· Cabinet Affairs

It is important I reiterate that the above represents and
remains our Party’s irreducible minimum position. We
attach hereto, for your ease of reference, the full ODM
Portfolio Balance List, which was delivered to you last
Friday.

3. Structure and Organization of Government

The following must also be agreed upon in advance:

· An acceptable classification of ministries;

· A clear definition of the roles and responsibilities of
the Office of the Prime Minister;

· The structure and organization of government, including
the rationalisation of the roles of the Head of the Public
Service and Secretary to the Cabinet;

· Appointment of the Permanent Secretaries;

· Appointment of Ambassadors and High Commissioners; and
the

· Appointment of the Chairpersons, Directors and Chief
Executives of parastatals, and constitutional offices.

I propose that a Joint Team of four members, two from each
side, be constituted to build consensus on these issues
within the next three days.

Please confirm your acceptance of the above before the
meeting this afternoon.

Yours truly,

Hon Raila Odinga, EGH, MP

Prime Minister-Designate

Encl.

88888888888888888000000000000000011111111111111111

STATEMENT BY HON. RAILA ODINGA, PRIME MINISTER-DESIGNATE,
ON THE CURRENT STATUS OF NEGOTIATIONS ON FORMING THE GRAND
COALITION GOVERNMENT

7 April 08

With cries of jubilation and Happy New Years, Kenyans on
28th February began to breathe freely again as the National
Accord brokered by Mr. Kofi Annan was signed by President
Kibaki and myself. The terror and fear they had been living
under at the hands of mobs, militias and government forces
was finally over. A few weeks later, Parliament unanimously
entrenched the Accord into the Constitution and Laws of
Kenya.

But since then, Kenyans have observed with growing dismay
and anxiety that not a single concrete agreement has been
achieved on any aspect of the new coalition government. Our
nation is adrift and without direction, and with each
passing day, our problems are mounting.

To overcome this terrible impasse and another looming
crisis, our side has gone many extra miles and made an
extraordinary number of concessions. Against the strong
wishes of our supporters and indeed of all Kenyans, we
accepted PNU’s insistence on a bloated 40 member
Cabinet. I agreed also to cede some of the most crucial
ministries – – such as Finance, Defense, Internal Security
and Justice and Constitutional Affairs.

-+In exchange, we obtained infrastructural ministries such
as Energy, Transport and Roads – which are instrumental in
the building of rapid economic growth – as well as Local
Government and Foreign Affairs. But in agreeing to this, I
indicated that we had reached our irreducible minimum. The
response to our magnanimity from the other side has been to
retract every agreement we have finalized!

This latest crisis in portfolio balance captures the
astonishing lengths PNU is willing to go to ensure that it
continues to monopolize power.

On 1st April, President Kibaki’s emissary, Hon George
Saitoti, gave me a proposed list of 40 ministries and how
they should be divided. The next day, we wrote to the
President’s Office rejecting the proposal.

The following day, 3rd April, President Kibaki and I met
for two hours and made numerous concrete agreements on
portfolio balance that I have just mentioned, which enabled
both of us to say publicly that the Cabinet would be
announced yesterday (Sunday).

On Saturday, I received from Ambassador Muthaura a letter
unilaterally indicating that the Cabinet to be announced
would be formed on the basis of an enclosed list of
ministries and their allocations that we had rejected on
2nd April! The agreements we reached in our 3rd April
meeting were nowhere to be seen.

We were therefore unable to reach any agreement in the six
hours of talks yesterday.

Today, in response to a letter I had written to President
Kibaki, we received a reply from Ambassador Muthaura side
reneging on our previous agreements, as well as the spirit
and the letter of the Accord. In PNU’s interpretation,
the Constitution grants the President exclusive executive
power to run this country on his own, and that these powers
supersede all the provisions of the Accord.

The President and I promised the nation yesterday that we
would finalize arrangements for the Grand Coalition
government, including the naming of the Cabinet. However,
PNU’s misconception of the Accord and the principles of
democratic governance mean that there was no point in
meeting today to conclude discussions on Cabinet formation
and the constitution of the government.

We hereby provide correspondence between our two sides
which gives details of the issues at stake and our
proposals on the way forward. Let me state once again that
we are committed to the full and speedy implementation of
the National Accord to resolve the crisis gripping our
country.

88888888888888888000000000000000011111111111111111

7 April 2008

His Excellency Mwai Kibaki, CGH, MP,

President of the Republic of Kenya,

State House,

NAIROBI

Your Excellency,

FORMATION OF THE GRAND COALITION GOVERNMENT

I have been directed by the Prime Minister-Designate to
reply to your letter as follows:

1. We note PNU’s expressed commitment to the
implementation of National Accord and Reconciliation Act.
However, the tone and content of your letter completely
negates the spirit and the letter of the Accord.

2. As you may appreciate, this arrangement is about a Grand
Coalition Government arrived at after protracted
consultations that saved this country from total collapse.

3. To facilitate the formation of the Grand Coalition
Government, the National Accord and Reconciliation Act,
2008 and the Constitution of Kenya (Amendment) Act, 2008
were enacted.

4. Your reference to Sections 23, 17, 18 and 111 of the
Constitution, with respect to executive authority of
government, assigning of portfolios to ministers and
appointment to Secretary to the Cabinet, Permanent
Secretaries and High Commissioners is misleading.

5. A Grand Coalition Government as envisaged by the
National Accord can only be managed under the provisions of
the Act. The other sections of the Constitution did not
envisage the Grand Coalition Government.

6. The Constitution as amended, in Section 4 (3) of the
National Accord and Reconciliation Act (2008) 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”. That is
the Constitution as it stands today.

7. Your reference to Sections 23, 17, 18 and 111 are
overridden by the proviso to Section 3 and Section 15A (5)
and (6) of the Constitution which states respectively as
follows:

“Provided that the provisions of this section as to
consistency with this Constitution shall not apply in
respect of an Act made pursuant to section 15A(3)”,
and

“Nothing contained in or done under the authority of
an Act of Parliament made pursuant to subsection (3)
immediately following the commencement of this section
shall be held to be inconsistent with or in contravention
of any provisions of this Constitution”.

Therefore, the references to the above sections of the
Constitution and all other provisions relating to the
exercise of the executive authority, appointments and
assignments of responsibility by the President, in this
coalition arrangement, MUST be exercised in strict
conformity and complete compliance with full provisions and
requirements of the Accord.

8. We look forward to the full and speedy implementation of
the Accord and will avail ourselves at the earliest
opportunity to discuss portfolio balance, structure and
organization of government, the appointments of Secretary
to the Cabinet, Permanent Secretaries, Ambassadors and High
Commissioners in our joint pursuit to constitute the
coalition Government as envisaged in Section 4(3) of the
National Accord and Reconciliation Act, 2008.

9. The basic framework and structure of the Government of
Kenya must be in accordance with the Constitution of Kenya
(Amendment) Act, 2008 and National Accord and
Reconciliation Act (2008) which is founded on
power-sharing. Any departure from the Constitution and the
Accord is an abrogation of the supreme law of the land and
any government otherwise established is illegal and
unconstitutional.

Yours truly

Dr. Mohamed Isahakia

ODM Secretariat

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Subject:  RAILA – KIBAKI LETTERS.