The following article originally appeared in The Star.
“Are we saying that nothing is going to happen in this country if Raila [Odinga] doesn’t consent? We cannot run like this.” —Uhuru Kenyatta, Deputy Prime Minister and Minister for Finance, February 17, 2011
“Given the current situation, neither side can realistically govern the country without the other. There must be real power-sharing to move the country forward… As partners in a coalition government, we commit ourselves to work together in good faith as true partners, through constant consultations and willingness to compromise.”
These words are part of the signed agreement on the principles of partnership of the coalition government: signed February 28, 2008, between President Mwai Kibaki on behalf of Government/Party of National Unity and Hon. Raila Odinga on behalf of the Orange Democratic Movement. It was witnessed by H.E. Kofi Annan, Chairman of the Panel of Eminent African Personalities and H.E. Jakaya Kikwete, President of the United Republic of Tanzania and Chairman of the African Union.
“Given the disputed elections and the divisions in 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.”
These words are found in the preamble of the National Reconciliation Accord and Reconciliation Act, 2008. This Act was entrenched in the old Kenyan Constitution and remains constitutionally recognized and protected through the transitional provisions of the current one.
So yes, Uhuru: unless you want Kenyans to blatantly ignore the constitution and trample underfoot the rule of law, there cannot be any executive action without the consent of Raila Odinga. It is not about our personal preferences, our likes or dislikes and it certainly doesn’t make President Kibaki a “kihii” (uncircumcised boy): this is the constitutional position currently obtaining in the country. President Kibaki signed on it as did Raila Odinga, Kofi Annan, and Jakaya Kikwete. Parliament later ratified it as did the Kenyan nation on August 4, 2010, when we voted overwhelmingly in support of the new constitution.
Let’s see if we can put it another way: the executive arm of government in Kenya today resembles a plate of githeri—a veritable mixture of maize and beans where none takes precedence over the other and the absence of one fatally detracts, degrades, and diminishes from the entire dish. For what becomes githeri if the maize seek to exclude the beans or vice-versa?
In fact, it could be argued that Kenya’s democratic failure since the political transition in December 2002 is based on this one fact: the attempt by maize and beans to outdo and exclude each other. Previously, under Jomo Kenyatta and Daniel Moi, it was either the maize or the beans presiding… and damn the rest!
The NARC coalition in 2002 was a clear attempt to craft a coalition mechanism as part of the political governance of the country: its popularity was in no small measure linked to the informal creation of a “summit” that incorporated several leading ethnic chiefs. It is no wonder that it chose to refer to itself as a “rainbow” coalition. It also rode on a wave of pro-reform rhetoric that promised more transparency, accountability and responsiveness in leading the country.
All this began to unravel when some began to brazenly exclude the others from the levers of power: saying they were usurping the powers of the presidency since the constitutional design of the presidency was not collegial. They went a step further: arguing against the principle of coalition-making and national integration in governance. Recall Chris Murungaru famously wondering how one could have a goat in a committee of sheep?
Constitutionally speaking, this was a sound argument. Under the old constitution, executive power lay exclusively with the president. Politically speaking, this argument was a dud: Kibaki had ridden into power on the backs of his coalition partners so he needed to accommodate them if he was going to retain his political legitimacy. Hence, the contestation turned to be one of legality versus legitimacy.
In the short-term, the “legalists” had their way; in the longer term, Kibaki’s legitimacy was so whittled down that he was monumentally trounced in the 2005 constitutional referendum that most concede was a protest vote against the unilateral style of governance that the “legality” argument espoused.
Instead of learning, the "legalists" dug deeper. They expelled from government those who had supported the “orange” protest during the 2005 referendum and found new "friends" who would not challenge the "legality" argument; forming the Government of National Unity. Here was a situation of a leadership that would “rather be damned by praise than saved by criticism.”
And this polarization was what led Kenya—formerly praised as an island of peace—to almost go belly-up in the conflict that attended the aftermath of the 2007 general elections. In barely five years, Kibaki and the "legalists" had needlessly and recklessly frittered away a 62 percent support base won in 2002 to a mandate where he could not “realistically govern without the other.”
Enter the coalition arrangement where executive power must be exercised by a duopoly. Given the events of the last two weeks where the PNU coalition sought to unilaterally appoint nominees to the constitutional positions of Chief Justice, Attorney General, Director of Public Prosecutions, and Director of the Budget, one can see that the “legalists” are still on the warpath. Yet, the 68.55 percent support garnered at the 2010 constitutional referendum when the two principles ultimately worked in tandem should have educated them better.
They may be politically incorrigible. But the days of the old constitution are history: they cannot continue living in lala-land where executive power is exercised by one to the exclusion and protest of the other. Today, it’s all about githeri—no matter how much the legalists engage in chest-thumping, saber-rattling… and table-banging.