News 2008


It's better to split the five-year term and save the country


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 pinnacle.

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 powers.

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 ethnic clashes.

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 doubt.

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