7th April 2008
His Excellency Mwai Kibaki, CGH, MP
President of the
Office of the President,
RE: FORMATION OF THE GRAND COALITION GOVERNMENT
The meeting yesterday adjourned to allow for consultations until this afternoon, after you declined further discussions on portfolio balance and instead insisted on your proposed allocation of ministries.
Our party is deeply concerned that the stalemate over the formation of the Grand Coalition Government is increasing uncertainty and anxiety in the country. It is also escalating the mistrust that we as leaders were expected to eliminate by the establishment of the Grand Coalition.
The National Accord and Reconciliation Act is already in force. It must be understood that ODM and PNU are equal partners in the Grand Coalition. The failure to form the Grand Coalition Government is in fact a continuing breach of the Act and the Constitution.
We have always acted in good faith and conveyed to Your Excellency that the Grand Coalition would be one government. The positions PNU is staking claim to imply that we are forming a government with two cabinets. On the contrary, this is a Grand Coalition of two equal partners sharing executive power on a 50-50 basis.
It is becoming clear to our party that your side is reluctant to honour the spirit and principles of the National Accord and Reconciliation Act. I therefore wish to let you know that the following issues must be resolved in the course of our further consultations on the formation of the Government:
- The Current Cabinet
The current cabinet should be dissolved to allow for the formation of a fresh Cabinet in accordance with the Act.
- Portfolio Balance
Although we reluctantly conceded to an enlarged cabinet against the wishes of Kenyans, our party now maintains that the Grand Coalition Cabinet should not exceed 34 ministries. Allocations of portfolios must be based on the agreement of 3rd April 2008 in which we agreed that the PNU side nominates appointments in the Finance and Security portfolios and in return, ODM would nominate Ministers to the following portfolios:
· Local Government
· Foreign Affairs
· Cabinet Affairs
It is important I reiterate that the above represents and remains our Party’s irreducible minimum position. We attach hereto, for your ease of reference, the full ODM Portfolio Balance List, which was delivered to you last Friday.
- Structure and Organization of Government
The following must also be agreed upon in advance:
· An acceptable classification of ministries;
· A clear definition of the roles and responsibilities of the Office of the Prime Minister;
· The structure and organization of government, including the rationalisation of the roles of the Head of the Public Service and Secretary to the Cabinet;
· Appointment of the Permanent Secretaries;
· Appointment of Ambassadors and High Commissioners; and the
· Appointment of the Chairpersons, Directors and Chief Executives of parastatals, and constitutional offices.
I propose that a Joint Team of four members, two from each side, be constituted to build consensus on these issues within the next three days.
Please confirm your acceptance of the above before the meeting this afternoon.
Hon Raila Odinga, EGH, MP
STATEMENT BY HON. RAILA ODINGA, PRIME MINISTER-DESIGNATE, ON THE CURRENT STATUS OF NEGOTIATIONS ON FORMING THE GRAND COALITION GOVERNMENT
7 April 08
With cries of jubilation and Happy New Years, Kenyans on 28th February began to breathe freely again as the National Accord brokered by Mr. Kofi Annan was signed by President Kibaki and myself. The terror and fear they had been living under at the hands of mobs, militias and government forces was finally over. A few weeks later, Parliament unanimously entrenched the Accord into the Constitution and Laws of Kenya.
But since then, Kenyans have observed with growing dismay and anxiety that not a single concrete agreement has been achieved on any aspect of the new coalition government. Our nation is adrift and without direction, and with each passing day, our problems are mounting.
To overcome this terrible impasse and another looming crisis, our side has gone many extra miles and made an extraordinary number of concessions. Against the strong wishes of our supporters and indeed of all Kenyans, we accepted PNU’s insistence on a bloated 40 member Cabinet. I agreed also to cede some of the most crucial ministries – such as Finance, Defense, Internal Security and Justice and Constitutional Affairs.
-+In exchange, we obtained infrastructural ministries such as Energy, Transport and Roads - which are instrumental in the building of rapid economic growth - as well as Local Government and Foreign Affairs. But in agreeing to this, I indicated that we had reached our irreducible minimum. The response to our magnanimity from the other side has been to retract every agreement we have finalized!
This latest crisis in portfolio balance captures the astonishing lengths PNU is willing to go to ensure that it continues to monopolize power.
On 1st April, President Kibaki’s emissary, Hon George Saitoti, gave me a proposed list of 40 ministries and how they should be divided. The next day, we wrote to the President’s Office rejecting the proposal.
The following day, 3rd April, President Kibaki and I met for two hours and made numerous concrete agreements on portfolio balance that I have just mentioned, which enabled both of us to say publicly that the Cabinet would be announced yesterday (Sunday).
On Saturday, I received from Ambassador Muthaura a letter unilaterally indicating that the Cabinet to be announced would be formed on the basis of an enclosed list of ministries and their allocations that we had rejected on 2nd April! The agreements we reached in our 3rd April meeting were nowhere to be seen.
We were therefore unable to reach any agreement in the six hours of talks yesterday.
Today, in response to a letter I had written to President Kibaki, we received a reply from Ambassador Muthaura side reneging on our previous agreements, as well as the spirit and the letter of the Accord. In PNU’s interpretation, the Constitution grants the President exclusive executive power to run this country on his own, and that these powers supersede all the provisions of the Accord.
The President and I promised the nation yesterday that we would finalize arrangements for the Grand Coalition government, including the naming of the Cabinet. However, PNU’s misconception of the Accord and the principles of democratic governance mean that there was no point in meeting today to conclude discussions on Cabinet formation and the constitution of the government.
We hereby provide correspondence between our two sides which gives details of the issues at stake and our proposals on the way forward. Let me state once again that we are committed to the full and speedy implementation of the National Accord to resolve the crisis gripping our country.
7 April 2008
His Excellency Mwai Kibaki, CGH, MP,
President of the
FORMATION OF THE GRAND COALITION GOVERNMENT
I have been directed by the Prime Minister-Designate to reply to your letter as follows:
- We note PNU’s expressed commitment to the implementation of National Accord and Reconciliation Act. However, the tone and content of your letter completely negates the spirit and the letter of the Accord.
- As you may appreciate, this arrangement is about a Grand Coalition Government arrived at after protracted consultations that saved this country from total collapse.
- To facilitate the formation of the Grand Coalition Government, the National Accord and Reconciliation Act, 2008 and the Constitution of Kenya (Amendment) Act, 2008 were enacted.
- Your reference to Sections 23, 17, 18 and 111 of the Constitution, with respect to executive authority of government, assigning of portfolios to ministers and appointment to Secretary to the Cabinet, Permanent Secretaries and High Commissioners is misleading.
- A Grand Coalition Government as envisaged by the National Accord can only be managed under the provisions of the Act. The other sections of the Constitution did not envisage the Grand Coalition Government.
- The Constitution as amended, in Section 4 (3) of the National Accord and Reconciliation Act (2008) provides that “the composition of the coalition Government shall at all times reflect the relative parliamentary strength of the respective parties and shall at all times take into account the principle of portfolio balance”. That is the Constitution as it stands today.
- Your reference to Sections 23, 17, 18 and 111 are overridden by the proviso to Section 3 and Section 15A (5) and (6) of the Constitution which states respectively as follows:
“Provided that the provisions of this section as to consistency with this Constitution shall not apply in respect of an Act made pursuant to section 15A(3)”, and
“Nothing contained in or done under the authority of an Act of Parliament made pursuant to subsection (3) immediately following the commencement of this section shall be held to be inconsistent with or in contravention of any provisions of this Constitution”.
Therefore, the references to the above sections of the Constitution and all other provisions relating to the exercise of the executive authority, appointments and assignments of responsibility by the President, in this coalition arrangement, MUST be exercised in strict conformity and complete compliance with full provisions and requirements of the Accord.
- We look forward to the full and speedy implementation of the Accord and will avail ourselves at the earliest opportunity to discuss portfolio balance, structure and organization of government, the appointments of Secretary to the Cabinet, Permanent Secretaries, Ambassadors and High Commissioners in our joint pursuit to constitute the coalition Government as envisaged in Section 4(3) of the National Accord and Reconciliation Act, 2008.
- The basic framework and structure of the Government of Kenya must be in accordance with the Constitution of
(Amendment) Act, 2008 and National Accord and Reconciliation Act (2008) which is founded on power-sharing. Any departure from the Constitution and the Accord is an abrogation of the supreme law of the land and any government otherwise established is illegal and unconstitutional. Kenya
Dr. Mohamed Isahakia
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