Sunday, March 6, 2011

Might the grand coalition be illegitimate?

Sunday Nation 06 March 2011

The wrangling in Kenya’s divided government leaves one in no doubt about the need for real change in this country.

Clearly, only tangible action will help change this country, and this tangible action does not include congregating on street corners and singing the national anthem for a few minutes and then dispersing as happened last Monday.

Tangible action entails scouting for all possible constitutional means to effect a real regime change in our time.

Thanks to countless research papers and opinion polls, we know that our system of governance and our politicians top the list of our immediate problems.

In August last year, we promulgated a new Constitution in the hope that we would change the system of governance and, with it, usher in a new generation of leaders.

However, all indications are that we will have to contend with the same old kleptocrats, or their offspring and hangers-on.

Since the promulgation of the new Constitution, many have had cause to wonder why the drafters of the Constitution postponed the overhaul of the political system to late next year.

The assumption was that they had some pretty good reasons for doing so, guided by precedents from other jurisdictions and their own legal education.

However, after carefully studying the Constitution, especially the transitional provisions, it appears to some of us that the drafters never intended any such continuation, but were only forced to include these provisions by the political realities of the moment.

Nevertheless, it may be that they left us a very narrow window of opportunity that may be used to truncate the lifespan of the grand wrangling coalition before the expiry of its five-year term.

Despite all appearances, it seems that the secret is in the wording of Article 3(2) of the Sixth Schedule of the Constitution, which provides, among other things, that “... the National Accord and Reconciliation Act shall continue to operate until the first General Election held under this Constitution ...”

Many have argued that this provision allows the Grand Coalition to continue in office until some time in 2012, when elections are expected to be held.

However, Article 9(2) of the same Sixth Schedule leaves this open, stating that “Despite subsection (1), if the coalition established under the National Accord is dissolved and general elections are held before 2012 ...”

The clincher actually comes in reading the National Accord and Reconciliation Act that the schedule refers to. Section 8 of this Act reads: “This Act shall cease to apply upon dissolution of the Tenth Parliament, if the coalition is dissolved, or a new Constitution is enacted, whichever is earlier”.

Clearly, the Tenth Parliament is still in session, and the coalition has not yet been dissolved; but we enacted a new Constitution last year.

Our erudite legal brethren need to educate us on a few points – did the new Constitution resurrect an Act of Parliament that died on the day the same Constitution was enacted?

In that case, why did the drafters not simply indicate that section 8 of the National Accord and Reconciliation Act would not apply until the next General Election?

Might it not be possible that the much-vaunted National Accord ceased to operate on or before August 27, 2010?

If this is the case, isn’t this wrangling coalition in office illegal, or illegitimate?

Dr Lukoye Atwoli is a consultant psychiatrist and lecturer at Moi University’s school of medicine

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