Why Raila's plan on Nadco may be a pipe dream

Raila Odinga’s demands on the full implementation of the National Dialogue Committee (Nadco) report, which introduces the Leader of Opposition and the Prime Minister offices, may be a tall order, according to a joint report by the National Assembly and Senate.

The report rejected the establishment of the PM office, stating it was not clear how the position would align with the presidential system of government and the functions of the office of the deputy president.

The joint committee, in the report that was received on January 16, maintained that the proposal would alter the country’s governance structure.

The National Assembly’s Committee on Justice and Legal Affairs, and the Senate’s Justice, Legal Affairs and Human Rights Committee also pointed out that the term “minister” was not recognised by the Constitution.

“The President has powers to organise his Cabinet, including designating a Cabinet Secretary as a Prime Cabinet Secretary, without the need for a constitutional amendment. Further enshrining the position in the Constitution would make it mandatory for a President to appoint a Prime Cabinet Secretary which ought to be left to the discretion of the President,” the report reads.

On the proposal to create the office of the leader of the Opposition and two deputies by amending Article 137 (3), the committee maintained that there was no provision on whether the position would be a public or state office, and in which arm of the government it would be domiciled.

“It is not clear how the positions of the Leader of the Opposition and the two deputies would align with that of the Leader of the Minority party as currently provided for in Article 108 (3) of the Constitution. Introducing such an office would profoundly alter the functions of Parliament and the country’s system of governance and undermine the current presidential system because the Constitution doesn’t envisage a member of the Executive sitting in Parliament as implied in the proposed Nadco leader of the Opposition Bill.”

At the same time, the legislators said staggering polls so that the President is elected on a separate date from MPs, MCAs as well as Governors “would require a complete overhaul of the Constitution” and therefore create legal, practical and administrative challenges.

Some leaders have reiterated that they would oppose any effort to introduce the PM position through the backdoor, maintaining that the only legal route is the referendum route. They see this as a vote against President William Ruto’s regime.

Gatanga MP Edward Muriu, a member of the committee and the UDA Secretary for Legal Affairs, maintained that it would be futile for the President to re-introduce the proposals in other ways other than those provided by the Constitution.

“The only door open for the government to implement the Bill has now been closed following our committee’s rejection and we shall not expect them to bring a replica of the National Accord that saw Raila made the Prime Minister after the post-election violence. If they truly believe in what they want to do, let them bring the referendum as they seek to change the basic structure of governance,” he said.

Kirinyaga Woman Rep Njeri Maina, also a member of the team, maintained that she was opposed to any attempt to subvert the Constitution to create politically influenced positions. 

After the Nadco report was presented to the President and Raila, their coalitions differed on the roadmap to the implementation as the government opted for the establishment of the two offices outside the Parliament to avoid the referendum.

In his quest to seek consensus on whether to formally join to join the Ruto government, Raila has been crisscrossing the country in what he describes as consulting his supporters.

In what some see as convincing his friends on his resolve to formalise a political partnership with Ruto, the ODM leader has already toured Homa Bay, Siaya, Kisumu, Busia and the Coast counties. Yesterday, Raila was in Wajir.

He is reported to have met with retired President Uhuru Kenyatta, who is the Azimio chairperson, in Kilifi. Details of their meeting were not disclosed.

Political analysts argue that strategically, the Kenya Kwanza administration may not advocate for a referendum at the moment because it is unpopular due to issues such as abductions, high cost of living and the Social Health Authority failures.

“The timing of Raila’s demands on the implementation of Nadco is bad because the government is unpopular and regardless of how impactful the referendum could be, they would say no to protest against the government,” says Dr Charles Nganga of JKUAT.