While there is no doubt that the dalliance between “political brothers” President Uhuru Kenyatta and Orange Democratic Movement (ODM) leader Raila Odinga is blossoming by the day, what remains in doubt is how to best roll out their pact amid imminent impediments from political rivals.
Among the avenues being explored is the creation of a government of national unity aimed at promoting national cohesion as designed by the Kenyatta-Odinga Handshake gesture of March 2018.
However, opinion is divided among constitutional lawyers and politicians on the viability and legality of the move.
Last Saturday, Kirinyaga Governor Anne Waiguru divulged to the Sunday Nation that plans were being mooted to bring on board Mr Odinga and other opposition leaders to the government.
According to the governor, as one of the key players in the Building Bridges Initiative (BBI), the plans are influenced by the situation in the country, “which requires all heads together in times of crisis”.
Although the notion behind such a proposal is plausible, its execution is a minefield of political and legal impediments.
Lawyer Harun Ndubi terms such a move unconstitutional. The Constitution, he says, anticipates multiparty democracy in the country as per Article 10 and 23.
The legislation permits the formation of coalitions before and not after elections: “Ideally, the Kenyan law does not contemplate the co-option of political parties in government after elections, as this is contrary to the elections and political parties’ acts”.
“If Mr Odinga commits the sin of joining Jubilee government, he must be reminded he has no business desiring to be in government, whose poll victory was voided by the Supreme Court and whose repeat poll — which I still hold was an invalid election — he boycotted, without being elected,” reacts the lawyer, who unsuccessfully petitioned Kenyatta’s win in the repeat poll.
Mr Ndubi warns that such a move will be tantamount to legitimising election theft: “Such a move amounts to telling Kenyans that one can deliberately mess up an election and proceed to co-opt the rival in government.”
But noting that politics is the art of the possible, political scientist Amukowa Anangwe observes that indeed an informal and extra constitutional arrangement, “which bends the law but does not break it” can be crafted to facilitate a Kenyatta-Odinga government.
Even if the legal process is circumvented, Mr Anangwe and Mr Ndubi concur the merger plan could face a major political hurdle in Parliament, considering that appointments of Cabinet secretaries and principal secretaries require the approval of National Assembly legislators.
In essence, observes Prof Anangwe, the plot has to be manoeuvred through cautiously with the support of influential political players.
In fact, according to Mr Ndubi, the proposition to get the ODM leader into government is a political gimmick aimed at settling scores within Jubilee Party’s feuding factions.
“Someone is simply stoking the embers within Jubilee because the talk of a Kenyatta-Odinga government has absolutely no legal foundation.”
Curiously, proposals for a post-Covid-19 Government of National Unity (GNU) have only been fronted by politicians allied to President Kenyatta, including Ms Waiguru, Jubilee vice-chairman David Murathe, Nominated MP and ex-Cabinet minister, Maina Kamanda, as well as Central Union of Trade Unions (Cotu) Secretary-General Francis Atwoli, who is allied to independence party Kanu.
Noting that those fronting for a Kenyatta-Odinga GNU are confessed antagonists of Deputy President William Ruto, Prof Anangwe opines those propagating the notion of a GNU are individuals who may be (mis) using Odinga as a decoy to fight Ruto politically.
Alternatively, the ex-Cabinet minister argues the likes of Ms Waiguru and Ms Atwoli may be trying to test the waters with a view to gauge the nation’s reception to such an arrangement.
“It may as well be a ploy to blindfold the Raila camp to play ball and stick with the president, considering that these proposals are being fronted against the backdrop of intensified battles between Kenyatta and Ruto in Jubilee.”
Reached for comment, Mr Murathe did not wish to be drawn into the political rift between the president and his deputy.
He explained he had only expressed his personal wish for the formation of a GNU. “I said that I would prefer to see a government of national unity that would help rebuild the nation economically and politically in post Covid-19 period by uniting us all and capturing our aspirations.”
Separately, ODM Secretary-General Edwin Sifuna maintains the Odinga-led party is not interested in getting into government.
The symbolic handshake between the president and the former prime minister, explains Mr Sifuna, was never about forming a coalition government or securing government jobs for ODM leaders but for enhancing national cohesion.
“The ODM leadership is focused on realising constitutional reforms that can bring about electoral justice and equitable distribution of resources and access to employment opportunities. And once the coronavirus is adequately contained, we shall be pushing for conclusion of the BBI process so we can execute the necessary reforms,” says the Nairobi-based lawyer.
According to the Orange party spokesman, it is foolhardy to join the Jubilee administration at this point in time.
Mr Sifuna observes the political repercussions are major, including partly shouldering the burden of Jubilee’s poor performance and other related negative attributes, real and imagined.
Besides, there is no adequate time left to make any impactful contribution or change within government.
Describing Mr Odinga as an institution in Kenyan politics, pundits are in agreement the 75-year old politician would not condescend to such a low and vulnerable level, which would expose him to operate at the whims and pleasure of President Kenyatta.
“We do not wish to join government for sake of it. This is Jubilee’s rule and our business is to help create a level playing field so we seek to rule after 2022 under a fair and just environment,” Sifuna told the Sunday Nation.
Post-election political mergers are not new in Kenya, the first having been witnessed in 1964 when opposition legislators in Kadu, led by the late Daniel arap Moi, crossed over to Kanu and were rewarded with Cabinet positions.
In June 2001, Moi, then-Kenya’s second president, invited National Development Party’s (NDP) Odinga to the Kanu government.
Upon disbanding, he was appointed Energy minister alongside allies, Dr Adhu Awiti (Planning) and assistant ministers Orwa Ojodeh (Education) and Peter Odoyo (Foreign Affairs).