Opening of Kenya’s Parliament.
Tomorrow, Monday January 14, 2008 is the official opening of Kenya’s official legislative body -- the Kenya Parliament. Leaving aside, for the moment, the increasing tension in the rest of Kenya, this first Parliamentary session is bound to be the stuff of Prime Time TV… so get your popcorn ready.

The Opposition (ODM) party controls 108 out of 222; clearly not a majority but with alliances they might even reach a super majority. The incumbent government party (PNU) won only 36 seats out of 222 seats; they need desperately to form massive coalitions, and as the incumbent government they can AND have already offered minor parties major roles in the governmental apparatus e.g. the vice-presidency in exchange for their parliamentary loyalty. This, unfortunately, is a movie we have seen so many times before in Kenya -- business as usual. And in truth, this is how democracy ought to work -- horse-trading etc. but in the backdrop of a stolen election things are a little different.

The EU and US resist Kenyan business as Usual

The EU presidency has said "All political parties in Kenya should recognize that it cannot be business as usual in Kenya until there is political compromise which leads to a lasting solution that reflects the will of the Kenyan people, wins their confidence, and helps return Kenya to stability,"

The US, in a welcome change, has, according to the US Assistant Secretary of State for African Affairs, Dr Jendayi Frazer, said in a statement: "The United States cannot conduct business as usual in Kenya. The Kenyan people recognize that the post-electoral crisis has revealed longstanding problems that cannot be ignored."

This is helpful. Clearly the foreign powers with the most influence in Kenyan political affairs -- the USA and the EU -- have decided that: 1) a recount is not possible due to the time that has elapsed (in addition due to Kenya’s constitutional temporal limitations on recounts); 2) a run-off is not acceptable, because of the cost in human lives, logistics, loss of financial and economic opportunities, investments and the generally unpredictable violence that this might entail. The only feasible solution, then, is to encourage a political settlement between the Opposition and the incumbent government based on the announced result.

Both sides know this and are digging in. Should they decide to stage their standoff in Parliament rather than the streets of Kenya, then most at stake is who elects the powerful Speaker of Parliament and his/her deputy because they largely control the agenda that comes before the whole parliament, including, votes of confidence or lack thereof.

The Ideal Situation
This would be what I outlined in my January 5 post: Fully reproduced herebelow:

“A possible way forward?
In my view, because both sides have red-line positions that seem intractable (Govt: you must accept our authority or go to court to contest it. Opposition: We cannot under any circumstances trust the courts to be fair), BUT both sides have also stated that they are willing to discuss forming a coalition government. Then this cold-blooded political deal seems the only way out of this impasse.


Power of the President
The biggest issue would be what President Kibaki's administration could offer the opposition. This is the biggest issue because, in Kenya, the President is both the head of state and head of government, and has powers to both appoint and REMOVE without cause the highest ranking executive officers (cabinet members, police chiefs etc), military officers (captains, generals etc.), AND judicial officers (High Court justices INCLUDING the Chief Justice) throughout the land WITHOUT any legislative or other review. This makes the President of Kenya basically Superman, or stated more politically, a King! Stated simply, the entire Executive branch, the entire Armed Forces and the entire Judiciary serve at the President's pleasure and Parliament has NO say in who gets to serve and who does not.

Reducing Presidential Powers: A couple of Suggestions
First, perhaps, the post of a Prime Minister could created with, for instance, the power to veto the President's power to remove without cause certain executive, military and judicial officials. What level of unaccountable Presidential appointment and removal power could be a point of negotiation that might be acceptable to both sides?


Second, if the post of a Prime Minister is not possible, maybe, then, the appointment of very high ranking executive, military and judicial officials could be made to require legislative approval of a certain threshold -- perhaps a simple majority. If these two changes ALONE were implemented in Kenya's constitution, they would make a REVOLUTIONARY difference in Kenyan politics.


An Opportunity for the Opposition?
This, perhaps, is what the Opposition should now focus on fighting for. I say this for two reasons: 1) the diminution of Presidential power would mean that obtaining and retaining the Kenyan Presidency would cease to be the zero sum game that it currently is. The stakes associated with being President of Kenya would diminish to a level congruous with other stable democracies. This concentration of an inordinate amount of power in the President's Office is the single most damaging, DIVISIVE and destructive condition that Kenyan political, civil and economic life suffers from; 2) this reduction in Presidential power is also a clearly stated and principal raison d'etre of the opposition itself. This, together with the devolving of power from a nearly omnipotent central government in Nairobi to the different provinces are the clearly stated ultimate goals of the opposition. These are the promises the opposition ran on and with which they won 60% of Kenya's legislative seats, and why 80% of President Kibaki's cabinet was voted out of office.

If the opposition can force these constitutional changes, or something approximating a meaningful diminution of Presidential power in Kenya's Constitution, then perhaps the senseless violence; the horrific rapes and vicious murders; the heartbreaking and unnecessary loss of life; the massive displacement of Kenyan citizens; and even the potential but, hopefully, temporary loss of faith in democracy and its processes would be worth it.”