Kenyan Peace Pact-Any power play options for mischief?

By Charles A. Khamala Esq.,

Thursday, March 13, 2008

KhamalaOur break with the cold has been so far so good. Every Kenyan is now more than aware of the nemesis of political mischief. However, as we welcome the political matrimony between hitherto arch rivals, would there ever be an occasion where either of the two leaders, Raila or Kibaba would be caught off-guard and by constitutional sleuth of hands be kicked out of office? Perhaps these are conspiracy theories, but then what was it that motivated Raila to drive so hard and fast a bargain?

You see, he can theoretically hamstring passage of all government legislation, since bills require 50% majority, and ODM combined with its allied has a slight edge, 105+7(nominated) against 102+5 seats over PNU and its affiliates.

Worse still, a vote of no-confidence on Kibaki requires only seven days notice, and with ODM’s Kenneth Marende having won the Speaker’s seat, such no-confidence vote could catch Kibaki off-guard, most embarrassingly.

However, it is unlikely that MP’s, 60% having been newly elected, would themselves relish the prospect of re-runs so early in the life of the tenth parliament, but Kibaki wouldn’t want to live dangerously. In old age he prefers to enjoy his outgoing term in office by traveling abroad etc., without surprises. Yet his legitimacy was not recognised by anyone save Uganda’s Museveni.

Anyhow, for what its worth, as soon as the Kenyan position becomes clearer what we can say is that the whole thing is still a gentleman’s agreement albeit witnessed internationally and signed by the contending parties. It has moral authority and is based on the international principle of good faith. Hence it might be enforceable under international law. But I still hold to my guns that an elected party gets legal mandate from the electorate to govern under the existing constitutional dispensation. It is necessary to revert to the population by referendum if a fundamentally new power structure is desired. Hence the so called National Reconciliation Act requires a 2/3 majority of parliamentary approval to effect minor alterations to the current constitution.

Finally, when push comes to shove, Raila has proven beyond a peradventure, that he is without equal, as a political strategist in Kenya. Therefore he probably has some tricks up his sleeve which will enable him to develop the prime minister’s post into a defacto presidency for all wants and purposes even without it being so legislated. What I am suggesting is that power does not come from the document. It depends on how an agent uses opportunities available to him. And this Raila has it in his personality to make much mileage out of nothing. Given an inch, he’ll take everything. He’s got an inch. It is all he needs.

However, the problem with relying on dynamic personalities, heroes, stars, messiahs or celebrities is that their charisma is finite and yet societies must outlive such cult figures. Even if he happens to be a benevolent dictator, after Raila, then what? Only after rules are built into our society can we stop carrying flashlights. The National Reconciliation and Accord Act represents but a mere flicker of what the new dawn might be. It is just an ember of hope which may in the fullness of time, become a blazing inferno enough to warm up the country and even light up the hearts of citizens in other parts of world. It all depends on how we fan it. If neglected the cinder might simply fade. And our souls remain frozen.

As for now its immediate impact is that Raila gets to ride a state limousine complete with police escort. This means that he doesn’t have to pay the costs of losing an election. Similarly the 16 ministerial posts, assistant ministers and parastatal bosses he appoints shall be able to recover financially and live to fight another day. Otherwise, but for this reprieve, many unsuccessful candidates were staring bankruptcy suits in the face. Already auctioneers had launched investigations to trace their assets and would be knocking on their front doors anytime soon. But for now, instead of winner-takes-all, it’s the loser-shares-half. In a society which routinely ravages and marginalises the have-nots this power-sharing gesture is sufficiently refreshing. But I doubt whether it means that Raila will be permitted to dispossess the propertied class from their estates and redistribute wealth ala President Dr. Mugabe. Kibaki’s lieutenants are probably under strict instructions to keep Raila under 24-hour surveillance. Any false move and…

Charles Alenga Khamala ( is a senior advocate practicing law in Nairobi, Kenya. This article is syndicated by