It's better to split the
five-year term and save the country
Story by JAMES THUO GATHII
11. 02. 2008
Itís the 11th hour in Kenyan politics. Now is the time for our
leading politicians not only to make bold concessions, but more
importantly, decisions that will be remembered for holding the
country together. One significant decision that President Kibaki
of PNU and Mr Raila Odinga of ODM should make is to split the
current five year term in two equal halves.
Each of them would serve one half. This will forestall further
violence that could split the country into exclusive ethnic zones.
Without such a compromise, our leading politicians will continue
to be intransigent in their inability to save the country from
further turmoil. PNU will continue to insist it won the election
fairly and ODM will not easily give up its claim of victory.
THIS PROPOSAL FOR SPLITTING THE term will require constitutional
reforms, which the current Parliament has the mandate to undertake.
That PNU argues a presidential election petition is the only
permissible way out of the dispute, while ODM replies that a
repeat election is mandatory, is in part engendered by our winner
take all system and a near impeachable imperial presidency at the
That is why a split of the presidential term must be part of a
broader constitutional reform agreement. It is beyond any question
that Parliament has just received an effective mandate from the
people, particularly given the rejection of a broad cross section
of former MPs.
Undoubtedly, under the current Constitution, Parliament can amend
the law to facilitate the splitting of the term.
A split term would also require additional constitutional reforms
to be viable. Neither Kibaki nor Raila, or for that matter any
future President, should continue to enjoy expansive
Constitutional reform would make the imperial presidency a matter
of the past in the following respects. First, any future President
would be required to comply with the results of the mediation
process, failing which there ought to be a clear process of
pushing the President out of office before the end of his term.
Second, any future President would have a constitutional mandate
to consult with the Opposition in the appointment of
constitutional office holders who enjoy security of tenure .
Third, appointments to all governmental commissions would have
representation of both the Government and the Opposition, similar
to the IPPG minimum reform package.
Fourth, not only would the current Electoral Commission be
disbanded, but the electoral system would be reformed to provide
for proportional representation. This would serve to not only
reduce the high stakes of a winner take all system, but would
hopefully encourage inter-ethnic collaboration in the election of
parliamentarians in areas that have been adversely affected by
Fifth, constitutional reforms would also enshrine the
decentralisation of power by giving more autonomy and policy space
to localities. Certainly, there are other reforms that could be
included in this non-exhaustive list.
Ultimately, I make these proposals not because I belong to any of
the disputing political parties, but because, like many others, I
do sincerely believe that major and lasting political compromises
will have to be struck by our leading politicians as a way of
beginning the process of resolving the current crisist.
IF THERE ARE REALLY NO HARDLINERS in PNU and ODM, then a
compromise of the nature proposed here should be a feasible
reality. It will be remembered as evidence of the selflessness of
our leaders at a moment when the existence of Kenya was in grave
If PNU and ODM want to continue being relevant beyond threatening
to stay on in power, or to engage in mass action, this is the time
to reach a mutually agreeable compromise.
Now is the time for a politics that will promote understanding,
not a politics to keep or take political power as presently
enshrined in our constitution. The future of the country can be
determined by what choices our politicians decide to make.
James Gathii is Professor of International Commercial Law,
Albany Law School