THE BEST OF MUTAHI NGUNYI PART FIVE: Are we headed for ‘civilian coup’ with the new constitution?

By Mutahi Ngunyi

June 19th, 2010

President Kibaki’s “Yes” is not the same as Mr Odinga’s “Yes”. And the difference is unclear. What we must record, however, is this: One of them is more “No” than “Yes”. But we do not know which one. We must record another thing. All along, Mr Odinga supported a Parliamentary system.

But Mr Odinga abandoned this idea. And when he embraced the pure presidential system, he threw everyone off. The question, therefore, is this: Did he go underground? Or maybe it is the president who went underground. Once we figure this out, we will understand our present darkness including the ‘‘Sunday grenade’’. And my hypothesis is this: In their ‘‘unity’’, the war has gone underground. Now it is our responsibility to uncover it.

To do so, we must use a simple technique in Game Theory. We must take the draft constitution, play it forward first. Then ask; if it passes, who is the winner, who is the loser? From the answers, we must play it backwards. Here we must ask the question: Today, how are the winners behaving? And how are the losers behaving? Today I will ‘‘play it forward’’ and leave you to ‘‘play it backward’’. I will do it by playing out two scenarios.

One, chapter 9 of the draft favours the president and his coalition. If there are 14 million voters, ‘‘KKK’’ has close to 8 million. To the contrary, ODM’s assured vote is about 4 million. While the ‘‘KKK’’ vote meets the 50-plus-one per cent rule, the ODM one stands at 30 per cent.

The Senate is also dominated by KKK. The first 11 Senators, or 23 pc, will be from the Nation of Islam as per the First Schedule. Close to half will be from KKK. Between the two principals, therefore, who stands to gain from the 8 million votes and a dominant presence in the Senate? President Kibaki, of course. Is he in ‘‘Yes’’ because of this? I have no idea.

What about the Prime Minister; our man of the future? If the draft disadvantages him, why is he in the “Yes” camp? Consider my second scenario based on Game Theory. Here is my reading of the Sixth Schedule of the draft. Articles 3, 9 and 10 of this schedule make an election in 2012 impossible. Article 10 allows Parliament to finish its ‘‘unexpired term’’ but does not tell us how Parliament will be dissolved.

And this is because Article 3 removes Section 59 of the current constitution. This is the section that tells us how to dissolve Parliament. Because the President will not dissolve Parliament, it must dissolve five years from when it first sat on January 16, 2008. And this translates to January 15, 2013. From this date, Article 9 and 3 require us to hold an election in 60 days. Arithmetically, this takes us to March 17, 2013 as the earliest date of the next election. But there is a bigger problem.

Article 3 does not suspend the provisions that define the President’s term. In other words, President Kibaki’s term will expire on December 29, 2012 as per Section 9(1) of the current constitution. And if this happens, we will have to wait for close to three months for a presidential election to happen on March 15, 2013. In sum, we will have no president, constitutionally, for three months. Let us aggravate the situation further.

Strictly speaking, the draft does not allow Parliament to extend to January 15, 2013. In fact, it gives it five years from August 20 this year. The draft allows Parliament to finish its ‘‘unexpired term’’. However, the legal instrument that defines this ‘‘unexpired term’’ is Section 59(4) of the current constitution. This section is thrown out. In law, therefore, there is no way to define the ‘‘unexpired term’’ in the absence of Section 59(4).

No competent court will refer to this section after August 20 on account of Article 264. If this is true, the term of Parliament will only be defined through Articles 101 and 102 of the draft constitution. And, going by this, the next election will have to happen on the second Tuesday of August 2015.

Because we cannot have a presidential election until Parliament is dissolved as per Article 9(1) of the Sixth Schedule, this means that we will stay from December 2012 to August 2015 without a constitutionally elected president. But this should not be a problem anyway. The Peace Accord is retained and enhanced by the Sixth Schedule. There will be no power vacuum.

Whether we stay for three months or three years without a constitutionally elected President, the alternative principal, Mr Odinga, will assume executive power through a ‘‘civilian coup’’. Now the question to the public is this: If one of the principals is more “No” than “Yes”, who is it?

I invite you to ponder the question with a man from the State of Chu in mind. The man was as passionate about war as we are about politics. One day, he was crossing a river using a boat. But his sword fell into the waters. With speed, he made a mark on the boat. The mark was made where his sword had fallen. This would help him trace the sword once the boat docked at shore.

When the boat stopped, he jumped into the water at the place where he had marked the boat to look for his sword. Unfortunately, the boat had moved on, but the sword had not. I submit that we dropped something in the 2008 crisis. We did not stop to ‘‘collect’’ it. Now we hope the draft constitution will do it. Like the man from Chu, we are deluded. Our hope is that when the constitutional ‘‘boat’’ stops on August 20, we will collect our possessions. This will not happen. On this, and my interpretation of the Sixth Schedule, I could be wrong.

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