Saturday, February 23, 2008


Published on February 24, 2008, 12:00 am

By Sunday Standard Team
A deal ending the impasse could be announced mid this week, if the parties agree on the sole divisive issue remaining at the talks chaired by former United Nations Secretary General Dr Kofi Annan.

If the two parties agree on Monday or on Tuesday, the fate of the country will remain in the hands of President Mwai Kibaki and ODM leader, Mr Raila Odinga.

The two leaders will be presented with about 10 issues that will have been agreed on.

If the two also agree with the proposals expected to come out of the Serena Hotel this week, action will move to Parliament, where new laws would have to be made to cushion the agreements. This could put the country back on track until 2012 General Election. That is unless the coalition collapses before then.

The team negotiating the way out of the paralysis that has marked the country since December 27 could announce a final power sharing accord, as early as next Tuesday or Wednesday.

The team meets on Monday to discuss the only unfinished agenda remaining on the table: whether the issues agreed on so far should be constitutionalised.

On Friday, a member of Dr Annan’s technical team at the talks, Mr Hans Korel, a former Assistant Secretary General of legal affairs at the United Nations, took the negotiators through the options in getting legal protection for the agreements.

Within the ranks of ODM negotiators, there is said to be agreement that a constitutional amendment be undertaken to entrenchment the agreements.

The negotiators pursued this subject until late evening on Friday and broke camp with an agreement that they consult their parties and report back tomorrow.

on Saturday, a statement by the Presidential Press Service said President Kibaki had commended the Government and members of the Kofi Annan-led mediators for their work.

"The President has encouraged them to resolve outstanding issues, taking into account the broader national interests and also ensuring that the solutions they arrive at will withstand the test of time and enhance national cohesion, stability and prosperity," the President said, in a statement.

Kibaki said that despite the challenges the country has faced recently, the broader Kenyan leadership should have the capacity and the will to arrive at a political settlement, which galvanises the citizenry.

Should the deal be reached, it would herald a new Kenya, where Parliament, and not the President, as is the case now, will create ministries and assign them functions.

That could mean death to or even expansion of some of the existing ministries and creation of new ones.

The Orange Democratic Movement wants all the issues agreed turned into law through a constitutional amendment.

ODM’s position was that gentlemen’s agreements like the Inter-Parties Parliamentary Group Package of 1997 and the Memorandum of Understanding of 2002, have failed to work because they had no legal force.

Avoid past mistakes

The party wants everything that has been agreed on in the talks to be turned into law partly to avoid the fate of IPPG and the Narc MoU. This is also to avoid a scenario where some individuals could go to court to challenge the legality of what is being implemented.

ODM is pushing the argument that numerous additions and deletions have been done in the Constitution through simple constitutional amendments.

They argue there should be no difficulty doing the same with the agreements from the negotiations.

An ODM official said the Constitution has been amended in the past to either diffuse tension or entrench certain positions and the same can be done now to reclaim the country from the precipice.

"Whenever there has been a crisis that requires a political settlement, the Constitution has always been altered to capture the moment. It was done to remove section 2 (a) and allow a return to multi-party politics. It can be done now," the official said.

"At the time we were amending the Constitution to allow many parties, the country was in a crisis. There was detention without trial. Police were brutal and were breaking up opposition rallies. The Press was under siege. It was the last time the country witnessed the paralysis we have today. Moi rescued the country through an amendment. We have another constitutional moment today," the official added.

The Party of National Unity, although supportive of the power sharing arrangements agreed on so far, was by Friday not committing itself to support their inclusion in the Constitution.

They were to consult with their party, possibly including consulting President Kibaki, on the issue.

Should the negotiators agree on Monday that the issues be part of the Constitution, the ball will move to the courts of Kibaki Raila, who will be expected to give their stand on the close to 10 proposals that constitute a political settlement to the impasse.

So far, the two teams have agreed to have a Prime Minister, who will be the leader of the majority party in the House, with two deputies.

In the deal put together by the Annan team, the PM will only lose his position through a vote of no confidence in the House or if the coalition is dissolved.

The PM would be the Leader of Government Business in Parliament. He or she will also supervise and co-ordinate ministries in the coalition.

The coalition will stand dissolved if one partner pulls out. This means that should either PNU or ODM walk out, none can form another government, either with ODM-Kenya or the smaller parties in the House. Instead, a walkout by any of the partners will mean a General Election.

The reason, sources at the talks say, the country will be having a coalition government is because there was a dispute between PNU and ODM over the election results.

Should one party walk out, the dispute will re-emerge and only fresh polls will resolve it.

As the negotiators took a break at around 8 pm on Friday, they had also agreed that the government formed through the envisaged coalition would be in power till 2012.

They also agreed that government portfolios would be shared equally between the PNU and ODM.

Share government on a 50-50 basis

It was not clear where that agreement left ODM-Kenya. Previously, there had been a proposal of an arrangement that would give 15 Cabinet slots to ODM, 14 to PNU and four to ODM-Kenya.

ODM later opposed this, saying it should share the government on a 50-50 basis with PNU and ODM-Kenya’s slot, if any should come from PNU, which it supports.

When they closed business on Friday, the negotiators had agreed that the government be shared equally "at all levels" between ODM and PNU.

Those to be appointed to the Cabinet were to be picked by the leaders of each party and not by the President, as PNU had previously demanded.

The agreements arrived on by Friday also provided that those appointed to the Cabinet could only be removed through a written authority from the leaders of their party.

The talks resume tomorrow against the backdrop of grim predictions of the consequences should they not succeed.

The international community has virtually stated its case; that there needs to be a power sharing deal that is seen to be fair to both parties and that is protected by law.

Early last week, the Belgium-based International Crisis Group said in a report that although calm had partly returned in Kenya, the situation remains volatile.

The organisation suggested that to address the causes of the crisis, it would not be enough for the Annan team to broker a deal on the mechanics of a transitional arrangement between political opponents and schedule negotiations on a reform agenda.

It said the negotiations must address in detail a programme of power-sharing, constitutional and legal reform and economic policies "that convinces the drivers of violence to disarm".

"For negotiations to succeed, the international community must enhance its pressure, including aid conditionality as well as threats and application of targeted sanctions against spoilers."

ICG warned that armed groups are still mobilising on both sides of the political divide, waiting to strike should the talks collapse. According to the Crisis Group, the Kibaki coalition is buying time to wear down both the opposition and the international community’s resolve.

"It benefits from the presidency’s extensive powers, including unlimited access to public resources. It insists the situation is under control and there is no power vacuum, tends to treat Annan’s mission as a sideshow, while sponsoring alternative reconciliation processes, seeks to have Kibaki’s election recognised by neighbouring countries and continues to resist genuine sharing of executive power."

Representatives at the talks, however, say the Kibaki team appears committed to the negotiations, but they have their hands tied by what looks like a condition that they don’t take a decision on any new issue until they check with the PNU principal.

The Crisis Group said there are "three complementary sets of issues" that must be addressed to finalise a detailed power-sharing agreement.

"The first are the legal and constitutional reforms needed during the transition period, including a complete overhaul of the electoral framework.

Issues pending implementation

The second are the economic policies to be implemented during the transition.

The third are the concrete details of the process to be followed to end the violence and to deal with the humanitarian crisis, including the institutional framework and timelines."

According to the group, neither the ODM nor PNU had control over the violence that has rocked the country. That is contrary to local perceptions where PNU has accused of ODM of sponsoring the violence. It also points to a scary reality that none of the parties could end the violence should it erupt again, because they do not control it.

"International pressure is critical to achieving these objectives. The conditioning of multilateral and bilateral financial help for a negotiated settlement should be reinforced by a general travel ban and asset freeze policy against those who support and organise the violence or otherwise block the political process," the Group said.

It added: "Some hardliners in Kibaki’s camp depend on international credit-worthiness to keep their enterprises prosperous. The prospect of making individuals pariahs can be used to encourage concessions in the negotiations and good faith in implementation of an agreement."

International community has been putting pressure on Kenya and is almost single-handedly responsible for getting the parties to negotiate a settlement.

According to the Crisis Group, in assertions that confirm the position of most Western diplomats in Nairobi, the stakes go beyond Kenya.

The country’s political and economic health is an essential ingredient for the security and prosperity of eastern and central Africa and indeed for how the entire continent’s future is assessed by investors.

"Kenya’s stability determines regional access to energy supplies and basic commodities and guarantees a relatively safe environment for hundreds of thousands of Somali and Sudanese refugees. But concentrating on a power-sharing arrangement between ODM and PNU will not be enough to restore the situation," the group said.

Political parties to blame

The Crisis Group assigned responsibilities to the parties in the conflict. It asked the Kenya Government and PNU Coalition to "engage constructively in the power-sharing negotiations and take the opportunity of discussions on constitutional reforms and economic policies to negotiate guarantees for the continuation of reforms started by the Kibaki administration".

It asked PNU and the Government to restore security in the IDP camps and suspend resettlement and relocation policies until a framework has been agreed.

The group also asked the Government to arrest and prosecute the leaders of the Mungiki sect, and politicians supporting its activities, so as to redress concerns about possible state support for its resurgence.

It also asked ODM to engage constructively in the negotiations and support the immediate opening of detailed talks on constitutional reforms and the economic policies, to be carried out during the transition, with a view to reassuring PNU hardliners over its economic policies as well as addressing the grievances of its own hard line constituencies.

The Crisis Group asked ODM to condemn publicly and threaten with sanctions any ODM leader inciting ethnic hatred, and express sympathy for the victims of the violence.

The ICG wants the US, the European Union, Canada, South Africa and other international partners to peg continued aid to Kenya on the satisfactory conclusion of the negotiation.

It wants the countries to "implement and expand the travel bans already announced by the US, Canada, the UK and Switzerland by freezing the financial assets of individuals directly involved in or supporting violence or otherwise blocking the negotiation process and publicly blacklist their companies on financial markets".

Yesterday, The New York Times, an influential newspaper in Washington, took the cue, urging President Kibaki to "conclude, and implement, an agreement that would share real power with his principal challenger, Raila Odinga".

"Anything less will stoke more fury and destruction. Together, the two must quickly address constitutional and land reform issues that are the root causes of the chaos," the paper said.

It argued that any deal would quickly fall apart if Kibaki also does not cede some "real authority and responsibility" arguing that Odinga "deserves a meaningful role — and Kenya’s survival requires it".

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