No need for referendum on Nasa positions, argue deal craftsmen


Nasa Principals from left: Musalia Mudavadi, Raila Odinga , Isaac Ruto, Kalonzo Musyoka, and Moses Wetang'ula, at Bomas of Kenya on April 20, 2017. They will announce the alliance's flag bearer on Thursday next week. PHOTO | JEFF ANGOTE | NATION MEDIA GROUP

The National Super Alliance’s new top positions, as established in a power sharing agreement deposited with the Registrar of Political Parties last week, will not require amendments to the Constitution, lawyers who drafted the coalition document have argued.

But State House is saying the opposite, warning that Kenyans might be forced to spend billions of shillings on constitutional amendments should the Opposition, it it wins the next elections, go ahead with plans to create a new office of Premier Cabinet Secretary and two deputising functions.

Drafters of the coalition agreement, while defending its spirit and constitutionality, argue that the new positions are in line with the supreme law of the land, and hence there would be no need for the lengthy process of changing the law to create the slots.

They will, however, depend on the goodwill of the Opposition’s flagbearer Raila Odinga to create the positions as stated in the agreement.


“The positions will not need constitutional amendments nor are they unconstitutional since it will be the prerogative of the President to structure and organise his government,” the lawyers state in an advisory to Nasa principals.

In the deal, which brings together ODM’s Odinga, Wiper Party’s Kalonzo Musyoka, Amani National Congress’ Musalia Mudavadi, Ford Kenya’s Moses Wetang’ula, and Governor Isaac Ruto of Chama Cha Mapinduzi, the drafters relied heavily on Articles 131, 132 and 152 of the Constitution, which specify the powers and functions of the President.

Apart from the president and the deputy’s slot — the latter which goes to Mr Musyoka — the opposition coalition has proposed the positions of Premier Cabinet Secretary to Mr Mudavadi, who will be deputised by Mr Wetang’ula and Mr Ruto.

The deal provides that, upon winning the elections and taking office, Mr Odinga will be required to use his powers to create room for his co-principals in a new government structure they describe as the “horizontal sharing of power”.


“Article 152 contains a power vested in the President to establish, structure, and organise a Cabinet,” the lawyers state.

While Article 152 is basically about the size of Cabinet that a president can create, the powers to establish it are laid out in Article 132(a).

“Article 132 sets out how to realise the assistance of the Deputy President and the Cabinet Secretaries by vesting in the President the power to appoint the Cabinet Secretaries and other executive officers as set out in Article 132 (2) (a) – (e),” they state in the deal.

To avoid any possible squabbles that may arise if the President fails to establish the positions, the coalition agreement requires that once Nasa wins the elections, all decisions will be made in consultation with the co-principals.

“The (coalition) agreement ties the President, in forming government, to consult and have the concurrence of partners (co-principals)” the advisory states.


This, perhaps, explains the reason Mr Odinga on Thursday dwelt on their mode of power sharing, stating that it was a collegiate leadership in which he will be “the first among equals”.
The second step, which they argue the Jubilee administration is using to question the practicality of creating the new positions, will be to streamline the government to be in line with the Bomas Draft Constitution, which will require amendments to the supreme law. This will take between one and three years.

In an addendum to the agreement, they state: “The Coalition Parties undertake to initiate amendments to the Constitution to bring the structure of government in line with the Bomas Draft constitution.”

Both President Uhuru Kenyatta and his deputy William Ruto have rubbished Nasa’s power sharing agreement, arguing that it creates non-existent positions which may not be established.

On Sunday, Ruto claimed that Mr Odinga should not be trusted by his colleagues to establish the positions as he is only guided by selfish interest.


“It is now clear to all that this is one person who is selfish and would only want to do things that will only benefit him,” said the Deputy President in Narok. “He wants to cheat people that he is leading them to Nasa, which has no agenda for this country.”

In State House, spokesman Manoah Esipisu said it was unfortunate that instead of creating wealth, the Opposition’s plan is to abuse existing wealth so that three people can get jobs.

“You know, people have agreed to take jobs that don’t exist. One of the opposition leaders said in a media interview that the first job for the team will be to use billions of shillings to change the Constitution so the three phantom jobs can be legitimised,” Mr Esipisu said.


The State spokesperson was responding to a question regarding the Opposition’s leadership structure during his weekly media briefing at State House on Sunday.

He said opposition figures ought to know better that they cannot somehow enact constitutional changes within 90 days of taking office to create three jobs.

“Making constitutional changes that require a referendum will simply not take three months. It will take years,” he said.

“And, considering how citizens have rejected MPs and Governors that they don’t believe have used their resources prudently, they are unlikely ever to agree to spend billions of shillings to create jobs for the three men promised phantom ones.”

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