Uhuru must resign as DPM

Most Kenyans have taken the news of the resignation of Francis Muthaura as the Head of the Civil Service with a lot of relief. At long last someone important in the Kibaki-Raila Government has realised that no one is above the law in Kenya under the new Constitution. The news of Uhuru Kenyatta resigning as the Minister for Finance and not as the Deputy Prime Minister, however, puzzled a lot of people.

What could be the hidden message in the half-hearted move by the son of Jomo? Was it to prove that, compared to Muthaura, he is slightly above the law, as he was born with a silver spoon in his mouth? Was it to prove that he cannot be stopped from contesting the presidency of Kenya which, according to him, belongs to the big house of Mumbi? Or was it to prove that Mwai Kibaki has no powers to ask him to step aside from any office, if he was not willing to do so voluntarily?

These and many other questions kept lingering in many Kenyans’ minds when they were pondering the real reasons for the Government’s change of mind about Uhuru and Muthaura’s resignation. When Attorney General, Githu Muigai, announced that the two could keep their top jobs until after their appeal, many wondered whether he had forgotten his law.

Accepting Uhuru’s decision to step aside as the Minister for Finance the President announced that Kenyatta would retain the position of Deputy Prime Minister in “accordance with the Constitution.” That is another puzzling remark from the Head of State, who is obviously misinterpreting the Constitution. There is nowhere in the Constitution where it says Uhuru shall be the Deputy Prime Minister.

It is clear that what Kibaki is preparing to use as his ammunition in defence of keeping Uhuru as one of the two Deputy Prime Ministers is the National Accord and Reconciliation Act which is part of the Constitution. It may be true that Section Three of the Act says there shall be a Prime Minister of the Government of Kenya and two Deputy Prime Ministers, who shall be appointed by the President in accordance with this section.

It is also true that the law also says the person to be appointed as Prime Minister shall be an elected member of the National Assembly who is the parliamentary leader of the political party that has the largest number of members in the National Assembly; or a coalition of political parties in the event that the leader of the political party that has the largest number of members in the National Assembly does not command the majority in the National Assembly. That kind of description meant that only Raila Odinga could be appointed to be the Prime Minister. He was and still is the leader of ODM which has and still does have the largest number of MPs.

Kibaki will also be right when he says the Constitution says that each member of the coalition shall nominate one person from the elected members of the National Assembly to be appointed a Deputy Prime Minister. But that is all that the Constitution says. It does not say that Uhuru Kenyatta shall be the person to be nominated as the Deputy Prime Minister from Kibaki’s side. Indeed before Kibaki nominated Uhuru for the post of DPM, there were speculations that he would nominate Martha Karua who was then a strong supporter of Mwai Kibaki. In fact many believe Karua’s rebellious attitude toward Kibaki started when she missed the position of DPM. There is therefore absolutely no reason for Kibaki not to fire Uhuru and appoint another DPM. In fact the law expects him to do so.

According to the first schedule of the National Accord and Reconciliation Act the Prime Minister and Deputy Prime Ministers can only be removed if the National Assembly passes a motion of no confidence with a majority vote. Uhuru may be hanging in office because of this provision. If he has any respect for the new Constitution he should read the writing on the wall and resign before Parliament meets to kick him out unceremoniously.

According to Article 75 (1) of the Constitution a State officer shall behave, whether in public and official life, in private life, or in association with other persons, in a manner that avoids any conflict between personal interests and public or official duties. The Constitution also says that a State officer should also avoid compromising any public or official interest in favour of a personal interest; or demeaning the office the officer holds. It is a fact that nothing has demeaned the office of the Deputy Prime Minister under Uhuru Kenyatta than his being indicted by the International Criminal Court which suspects him of masterminding murder and rape.

If Mwai Kibaki is keeping Uhuru Kenyatta as his Deputy Prime Minister as a result of advice from Attorney General Githu Muigai, then the AG has misled the President because the Constitution is absolutely unambiguous on the issue of contravening Chapter Six on leadership and integrity. It says a person who contravenes the part of the Constitution quoted above shall be subject to the applicable disciplinary procedure for the relevant office; and may be dismissed or otherwise removed from office. Kibaki has no choice but to remove Uhuru from office. That is what the law says. It also says that a person who has been dismissed or otherwise removed from office for a contravention of these provisions is disqualified from holding any other State office. That means Uhuru, in fact, cannot be given any other job in the Government.

It so happens that soon after the National Accord and Reconciliation Act was entrenched in the Constitution of Kenya, Kibaki and Raila, as the two principals, made an agreement on the 16th of December 2008, which, among other things, said that the two sides shall prepare and submit to the National Assembly for enactment a Bill to be known as “The Statute for the Special Tribunal” to give effect to the establishment of the Special Tribunal to seek accountability against persons bearing the greatest responsibility for crimes, particularly crimes against humanity, relating to the 2007 General Elections in Kenya. The agreement said the Bill shall provide for the matters recommended by the Waki Report in relation to the Special Tribunal for Kenya.

Kenyans’ memories cannot be so short as to forget who made it absolutely impossible to form the Special Tribunal mentioned above. Martha Karua prepared the Bill and when it went to Parliament people like William Ruto shouted the loudest saying “let us not be vague, let’s go to The Hague”. Now the matter is before the ICC in The Hague and the same people are shouting the loudest to have the Kenyan case brought back.

The Raila – Kibaki agreement also said the Parties shall initiate urgent and comprehensive reform of the Kenya Police and the Administration Police. Such reforms shall be undertaken by the panel of policing experts and will include but not limited to a review of all tactics, weapons and the use of force, establishment of an independent Police Service Commission to oversee both the Kenya Police and the Administration Police, an Independent Police Conduct Authority for both the Kenya Police and the Administration Police, creation of a modern code of conduct for the Kenya Police and the Administration Police and achieving ethnic and tribal balance in the Force. Kenyans also know that these measures are far from being completed.

The most important part of the Raila-Kibaki agreement concerned Public Officers and Offices. It said the Parties shall ensure that any person holding public office or any public servant charged with a criminal offence related to 2008 post-election violence shall be suspended from duty until the matter is fully adjudicated upon. It also said that the parties shall ensure that any person convicted of a post-election violence offence is barred from holding any public office or contesting any electoral position. This means Uhuru and Ruto may find it extremely difficult to run for the Presidency of Kenya later this year.