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Law experts now speak over Uhuru, Raila ‘impending’ unity government

By People Reporter
Wednesday, April 29th, 2020
President Uhuru Kenyatta and ODM leader Raila Odinga during a past event.
In summary
    • Reorganise: Experts concur that the President can evoke his current powers to re-organise government in a manner that could accommodate Raila and his allies.
    • Order: The President can, by Executive order, bring Opposition members into Cabinet and have Raila as a non-executive Prime minister - Lawyer Ngetich.

Emeka-Mayaka Gekara

The push for a possible coalition government involving Opposition chief Raila Odinga has sparked debate, with some constitution experts warning that it could be a long, messy and tedious process.

However, they are in agreement that a “united government” was possible as it will not require amendment of the Constitution.

The major area of contention is whether the Constitution will have to be amended to accommodate Raila in the Jubilee government, in a move Deputy President William Ruto’s allies see as calculated to elbow him out of the power circle.

But even then, Ruto’s supporters and allies have vowed to block any planned coalition in court. 

“Any coalition must involve the party membership. They are formed when parties lose the majority to govern. 

“We still have majority. We will block any such move, including going to court,” said Soy MP Caleb Kositany.

“We won’t share power with people who had accused us of stealing elections.

Those seeking a coalition with Raila should join his party and stop dragging other Jubilee members into it,” said the MP, who is also the Jubilee deputy secretary general.

Create competition

Kositany, however, welcomed any decision to form an anti-Ruto coalition saying it would create formidable competition in the next election.

Constitution lawyer Bob Mkangi, a member of the Committee of Experts that wrote the 2010 Constitution and Nakuru-based lawyer Kipkoech Ng’etich overruled the possibility of a grand coalition government similar to that formed in 2008 between retired President Mwai Kibaki and Raila under the prevailing circumstances. 

But the two concur that the President can evoke his current powers to re-organise government in a manner that could accommodate Raila and his allies. 

According to Mkangi, a grand coalition will demand a constitutional amendment, but not so for re-organisation of Cabinet. 

Share positions

 “Coalitions are formed post-crisis or conflict through inter-party agreements such as the 2008 Grand Coalition government. Such coalitions are usually negotiated through the Constitution.

“That was the case of the National Accord and Reconciliation Act but formation of a united government is possible as it will not require tinkering with the Constitution,” he told People Daily.

Kibaki and Raila were forced to enter a power sharing agreement that resulted in formation of a coalition government following the 2007 disputed presidential election.

Mkangi also cited the case of the 2008 coalition government in Zimbabwe between former President Robert Mugabe and MDC chief Morgan Tsvangirai  which had to be anchored in the Constitution. 

 “Using his current powers, it is possible to create a coalition by sharing positions in Cabinet but that of the President and Deputy President is not available. 

“The President can by Executive order bring Opposition members into Cabinet and have Raila as a non-executive Prime minister,” said Ng’etich.

 He added: “They can also share the rest of the spoils in other government departments. 

“The Constitution is silent as it allows the President to appoint Cabinet secretaries from anywhere and the DP cannot fight against it.”

Talks of a possible coalition between Uhuru and Raila emerged amidst what is seen increasing isolation of the DP from the President’s inner circle. 

The DP has also put a spirited fight to wrestle Jubilee party from the President’s men. 

National Assembly Majority Leader Aden Duale has already warned that a Raila-Uhuru alliance was untenable. 

Require approval

Duale, a staunch Ruto supporter, says such a move will require not only approval of the Jubilee party structures, but also a Constitution amendment. 

“For you to go to a merger, you must call a National Delegates Conference (NDC) after National Executive Council (NEC) and National Governing Council (NGC) which is yet to happen,” said Duale.

 “The Constitution does not allow formation of a Government of National Unity. The only time we had a GNU was when we had the National Accord in 2008,” added Duale. 

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