ODM Party Leader Raila Odinga. (Photo: Collins Oduor/Standard)
There is no better example of one paying the price of their own victory than Raila Odinga’s, and by extension NASA’s, current challenges in naming a joint presidential candidate.
When Kenya’s history is accurately written, it will record that few leaders have invested as much as the then Prime Minister Raila Odinga in ensuring the writing of, and eventual passage, of the Constitution of Kenya 2010. From his days as Opposition chief to the Bomas of Kenya process, to the defeat of the maligned Wako draft and the eventual passage of the Constitution during the Grand Coalition season, Kenyans have a lot to thank Raila for the new constitutional dispensation.
Yet this document that promised much of what he had pursued for many year has become the latest albatross that threatens to yet again jettison his pursuit of Kenya’s high office. I am sure that to this day, Raila regrets his team’s concession of a presidential system at the Naivasha talks.
For those not aware of this history, the ODM parliamentary wing team under James Orengo’s informal leadership went into Naivasha totally committed to a parliamentary system. The PNU wing, unofficially led by current President Uhuru Kenyatta, had proposed a presidential system though they had by then conceded to the possibility of a Prime Minister, albeit a weak one.
At some point during the negotiations, ODM changed its position and accepted a pure presidential system, rejecting even the conceded position of Prime Minister.
As members of the unofficial delegations at Naivasha, we were all shocked at the sudden and unexplained change of heart and to this day. I have never understood what informed the reversal.
Indeed, the about-turn was so surprising that the PNU team almost rejected it, assuming it was a set up! Suffice to say that this ODM concession made it possible for us to have a constitution, so Kenya owes a debt of gratitude to those, including Raila, who advised the change.
Once a presidential system was signed off, the re-calibrated presidency was not only significantly neutered but the Constitution grossly reduced the space at the top, leaving the President and his deputy as the only elected and indeed senior officials in the Executive.
Politically, this slim head was to become a complication in alliance-building hence NASA’s headache. With only two senior seats available at the top, any political marriage is tough to negotiate. Arrangements like the famous “Pentagon” which allowed coalitions that could accommodate several top executive positions, which could then be dangled to voters, are now impossible.
Even if large portfolio positions in Cabinet labelled “Chief minister”, or to use constitutionally compliant nomenclature “Chief Cabinet Secretary” were offered, they were no more than “powerful” Cabinet Secretaries who could be fired at any time if the political winds shifted.
The other seats that are senior, the Speakers of the two houses, cannot excite political bases sufficiently to guarantee significant voter numbers. Naturally, it would be possible to adjust the Constitution to increase the space at the top, and most of these changes would not require a referendum.
But to make these offices command the power that would electrify voters, the Constitution would have to be reformatted substantially, impacting areas that might then require a referendum. Even more difficult, getting a coalition together on the basis of a post-election amendment promise has a deja vu feel; everyone remembers the 2002 Narc promise that was thrown overboard once the president was sworn in.
There are also several other MOUs that have been dishonoured in our political history to give any potential candidate jitters. That is the tough scenario that NASA finds itself in.
It is not impossible to build a coalition, but it will require massive self-sacrifice on the part of some of the coalition partners for an agreement to be signed off. Interestingly, it is the architecture of the very constitution that Raila fought for that makes it difficult to craft the new coalition. Such is the irony of life.
—The writer is an advocate the High Court of Kenya