National Accord and Reconciliation Bill: Was ODM Given Raw Deal?

Published on 27th February 2009

Kibaki and Raila on 28th Feb Last Year
On 28th February 2008, President Mwai Kibaki and Honorable Raila Odinga signed the National Accord that gave birth to the Grand Coalition Government that legitimized the Presidency of Mwai Kibaki and created room for Raila Odinga to become the second Prime Minister in Kenya.

The signing ceremony was witnessed by President Jakaya Mrisho Kikwete of Tanzania, Dr. Kofi Annan, former UN Secretary General, Mr. Benjamin Mkapa, former President of Tanzania, and Mama Graca Machel, the former First Lady of South Africa, several diplomats and Kenyans amongst others. The National Accord and Reconciliation Bill 2008 was published on the Kenya Gazette Supplement of 6th March 2008. It was to give effect to the Agreement on the Principles of Partnership of the Coalition Government, to foster national accord and reconciliation, to provide for the formation of a coalition Government and the establishment of the offices of the Prime Minister, Deputy Prime Ministers and Ministers of the Government of Kenya.

That part has been achieved. The positions of Prime Minister and two Deputy Prime Ministers were legislated and promptly filled. Section 4[2] of the Bill talks of the appointments of Ministers and Assistant Ministers which has been done. Section 4[3] says; ‘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’.

I bet that is sufficiently clear. It talks not of the cabinet, but talks of Government. This begs the question; what is government? The Government is composed of the Judiciary, the Legislature and the Executive. The cabinet is all but a small component of the Executive.

The Judiciary interprets the law as legislated by the Legislature. The Executive functions as shared by the President and the Prime Minister in the obtaining scenario in Kenya is responsible for all appointments into Government, from the cabinet, the civil service, the Judges, the Envoys and the Parastatals Heads to the Armed Forces.

When this National Accord was being negotiated, it was made clear that Party of National Unity (PNU) and Orange Democratic Movement (ODM were forming a Coalition Government based on 50% power sharing. This power sharing at 50/50 is what the Bill captures at Section 4[3]. This Section was not honored and it is the cause of all the mistrust in the government.

The ODM wing of Government went into government and never followed the spirit of Section 4[3]. It left them with high expectations from their followers; people who fought the party wars to ensure ODM won the last elections. Party faithful were of the view, which is aptly captured at Section 4[3], that the Coalition Government was going to reflect the relative strength of each party in Parliament.

To this extent, ODM having garnered more than half of the total votes and seats countrywide, was expected to provide the technocrats from ODM with at least 5 Provincial Commissioners, 60 District Commissioners, 180 Divisional Officers, 21 Permanent Secretaries, and half the chain going down in the entire civil service. Do not be cheated that these senior civil servants are loyal to Kenya. They are not. They are only loyal to their appointing authority. ODM should have taken its share as given out at Section 4[3].

ODM was also to recommend officers for senior appointments to the military and the police such that the spirit and letter of Section 4[3] is complied with. As much as these positions are meant to be neutral in their service, the truth of the matter is that all of the holders of these senior military and police offices are political appointees and all of them do not owe allegiance to the Constitution of Kenya. They all kowtow to the President who is their appointing authority.

ODM was to nominate senior lawyers from its rank for appointment to the Court of Appeal, the High Court and to the Magistrates courts. As much as we have a Judicial Service Commission, appointments to the Judiciary are all political. And nearly all these officers dispense justice not based on the gravity of the law, but on the whims of the appointing authority.

The Government is big. I would have wanted to see ODM take charge of half appointments to all State Corporations. None was touched. In the Diplomatic Postings, we were expecting that some from our ranks would be appointed Ambassadors but nothing happened.

This was a deliberate betrayal of ODM. Our Partners knew that once the Accord was signed, tempers would go down, and life for them would continue as usual. The check that Kenyans expected to come from ODM never came. Instead, our leaders got their share to the fullest and promptly forgot the people who fought and worked hard for them to occupy those lofty positions.

In the Memorandum of Objects and Reason, it is made clear by names that the agreement was reached between His Excellency President Mwai Kibaki on behalf of the Party of National Unity and Honorable Raila Odinga on behalf of the Orange Democratic Party. But soon after this was brought to effect, we all saw Raila being relegated to be an equal to Kibaki’s number two. Honestly, who is pulling our legs here?

In my view, ODM missed the point when they entered into government before they ensured that their Generals were well represented in this Government. As much as the Accord gave them 50% of this Government, they chose to only take 5% and leave the 95% to PNU. There was nothing to stop ODM from taking up their 50% of Government. They could have afforded to just wait for a short while, and ensure full compliance to Section4 [3].

This greed for office is what has put Kenya to the sorry state we are now, where Government Ministers and servants are competing at stealing instead of service delivery. Just imagine if the Ministers would have put equal zeal at public service!

One year down the line, this government has sunk so low in opinion polls that if elections were called today, all of them will go home. As for Raila Odinga, Kibaki has taken care of him and ensured that they walk out together, unless he runs out and goes to the nearest dip to disinfect himself.  Kibaki has touched him over in several places with soiled hands, and his impeccably clean white suit is now spotted. What is the way forward?

In my view, Kenya belongs to us all. We must all share in governance honestly, work hard to deliver services to the people, say no to tribalism and corruption, and thereafter live happily as brothers and sisters sharing in the bond of one country, one people.

By Odhiambo T. Oketch

Komarock Nairobi.


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