Major task ahead for AG as Annan
Story by SAMWEL KUMBA and LUCAS BARASA
02. March 2008
Chief mediator Kofi Annan leaves the country on Sunday as the task
of transforming the historic Harambee House deal into law shifts
to Attorney-General Amos Wako and Parliament.
Mr Annan, the man who for 41 days embodied Kenya’s hopes peace,
leaves subsequent mediation efforts in the hands of former
Nigerian foreign minister Oluyemi Adeniji.
The AG and four other lawyers, who are part of the Serena
mediation process, will now draft the necessary Bills to amend the
Constitution and accommodate the National Accord and
Reconciliation Act 2008 signed on the steps of Harambee House into
the country’s statute books.
Both PNU and ODM have scheduled meetings ahead of the opening of
Parliament Thursday to marshal their troops behind the deal struck
between President Kibaki and ODM leader Raila Odinga on Thursday,
setting the stage for a major reorganisation of the government
The five draftsmen are Mr Wako, Ugenya MP James Orengo, his Mbooni
counterpart Mutula Kilonzo and the mediation team’s joint
secretaries Karoli Omondi and Dr Gichira Kibaara.
The team will identify the sections of law that require amendment
and how those that run counter to the Annan deal can be adapted to
accommodate the new changes.
The team is expected to draft the necessary Bills in a manner that
will require only minimum debate and publish them before the State
opening of Parliament.
As the spotlight turned on the Wako team, representatives of the
European Union and the African Union appealed to parliamentarians
not to let Kenyans down but to ensure that the delicate process is
After the signing of the accord, it is now necessary to amend
certain sections of the Constitution to accommodate the
establishment of the offices of prime minister and two deputies
and define the character and functions of those offices.
The creation of the new posts is inconsistent with the current
Constitution, hence the reason for the amendment. Lawyers who have
scrutinised the agreement told the Sunday Nation that if enacted
under the current charter, the Accord Agreement would be null and
It is expected that debate will start with the proposed changes to
the Constitution before Parliament turns to those dealing with
ordinary Acts of Parliament affected by the deal.
However, for the purposes of these Bills and the fact that the
President has already convened the House earlier than anticipated,
it is clear to every player that the two Bills are being given
One would expect that after the presidential speech and debate on
it, Parliament would move fast to ensure the Bills sail through
their first, second and third readings.
Indeed, both parties plan to rally MPs to support implementation
of the peace deal.
MPs belonging to the government coalition, which comprises PNU and
ODM-K, meet in Nairobi on Sunday, in the words of Vice-President
Kalonzo Musyoka, to “plead” for support to back changes agreed to
in the accord as the ODM side meets on Wednesday.
Mr Odinga and President Kibaki have so far given assurances that
they will give full support to the Bills to be passed as soon as
The House’s first initiative, therefore, would be to pass the
Constitutional Bill that would enable the provisions of the Accord
to be constitutionalised in order to be consistent with the
Constitution. Once the amendments are done, then Parliament can
proceed to enact the Accord as an ordinary Act of Parliament.
A source privy to the process in Parliament confided to the Sunday
Nation that in a constitutional Bill, unlike an ordinary Act of
Parliament, the House needs a two-thirds majority to push it
through. “Whenever debate on the constitutional Bill is on the
floor of the House, the Speaker has to set out to the House and
inform them of what is required. This is because if there are not
two-thirds of MPs present or available during the debate, then it
becomes an exercise in futility,” said the source.
Furthermore, before a Bill is debated, it must be published and
before it is tabled in the House, there is a required 14-day
period between the date it is published and the day it is tabled
in the House.
The source said this requirement applies to any ordinary Act of
Parliament as well as a constitutional amendment Bill. It is after
the period that the Bills go through the same procedure of the
first, second and third reading and, if passed, go for
The only exception is that an ordinary Bill requires a simple
majority while one affecting the Constitution requires a
But the source hinted that the process could be hastened.
“There are situations where a resolution by the House can shorten
the timings. It does not have to be the full 14 days, for example.
Similarly, in one sitting, with the House’s resolution, a Bill can
be dealt with from the first reading through to the third reading
and passed,” said the source.
Traditionally when a Bill is read for the first time, Members of
Parliament are given another sitting for consideration in the
second reading. But if the timings are shortened, then the Bills
would not be in the order paper.
The source explained: “It would not be normal to have a Bill
appearing in the order paper, if it is a Bill indicating that it
be considered in the first, second and third reading at any one
sitting, normally done in different days.”
But bearing in mind the exceptional circumstances, according to
the source, and with the resolution of the House, it can be done
at one sitting and it is passed. Also, both Bills can be dealt
with on the same day if there is not too much debate and there is
unanimity and agreement.
The tricky part, however, is that constitutional Bills are never
amended. They can only be passed as presented to the House or they
are not allowed to see the light of the day. It is only ordinary
Bills that can be amended in third reading so long as notice to
the same effect is given.
This is because during the third reading there is usually debate
and exchange before the committee of the whole House.
That is why it emerged on Saturday that the team charged with
drafting the Bills is being extra careful so that the debate does
not meet any problems like misplaced comas or words that might
derail the process.
“They are consulting widely with the principals and all concerned,”
another source privy to the progress told the Sunday Nation.
Another possibility the team might be exploring is the need to
merge the two Bills into one.
“This is because the Bill would just be seeking to entrench the
provisions in the Accord Agreement as a constitutional enactment
instead of having two Bills. This is then formulated as part and
parcel of the Constitution,” the source added. If they decide to
have one Bill, it has to be a constitutional Bill.
A similar entrenchment creates other offices including the office
of the Attorney-General, Judges of the High Court and Court of
Appeal, Auditor-General, Commissioner of Police as well as the
Speaker, together with their securities of tenure.
“This will save the time of discussing two Bills. It is being done
fairly, first because the first business of the House is
anticipated to be about the Accord. That means the Bills should be
mature immediately after the Presidential Speech is debated. That
means the team has to ensure the Bills are ready in the course of
the week. They ought to be published any time by Tuesday or
Wednesday,” the source confided to the Sunday Nation.
The Accord Agreement on a number of critical issues was signed
after long negotiations characterised by strong stands from both
sides; it took the intervention of the principals to prevent a
“We believe by these steps we can together, in the spirit of
partnership, bring peace and prosperity back to the people of
Kenya who so richly deserve it,” Mr Annan announced with a sigh of
relief after releasing the contents of the agreement.
The Accord creates a Prime Minister of the Government of Kenya,
with authority to coordinate and supervise the execution of the
functions and affairs of the Government of Kenya and two deputies.
Also the coalition government so created shall at all times take
into account the principle of portfolio balance and will reflect
their relative parliamentary strength.