Azimio la Umoja leader Raila Odinga has threatened to oppose a proposed law seeking to establish the office of the leader of the official opposition if it is crafted to dictate terms on how to hold the government accountable.
Mr Odinga, through his spokesman Denis Onyango, told the Sunday Nation that the coalition was also waiting to see the contents of the Bill then deal with it but warned that if it is an affront to the Constitution, then it will be handled accordingly.
Speaking for the first time on a proposal to amend the Constitution to create the office of the leader of opposition, and a day after President William Ruto ’s surprise letter to Parliament that supported the plan, Mr Odinga said they are waiting to see the details of the legislative proposal.
“We are waiting for the Bill whenever and wherever it comes from so that we deal with it. We, however, do not anticipate a Bill stipulating when, where and how the government can be opposed and by who,” Mr Odinga said.
“Such a prescription would be unprecedented. We will likely take it as a new affront to the Constitution and will be responded to as such.”
This comes as Dr Ruto’s letter calling for an amendment to the Constitution to establish the office of the leader of opposition, among other things, continued to draw mixed reaction.
“I believe the idea of the official opposition, above and beyond mere minority parliamentary leadership, makes tremendous sense in terms of institutionalising governance, strengthening oversight and deepening democracy,” reads Dr Ruto’s letter to the two House speakers.
The other issues raised by Dr Ruto were resolving the two-thirds gender rule stalemate, entrenching various funds for legislators in law and reconfiguring parliamentary oversight. The President is, however, cautious about the changes, saying they should be pursued without subjecting the country to a referendum.
“It is important that we endeavour to pursue only those pathways to institutional changes by means that do not entail the resumption of disruptive and potentially divisive mobilisation for referendum or campaigning,” the President said.
But constitutional lawyer Bob Mkangi said the creation of the office goes beyond just inserting it in the Constitution as it will have an effect on the overall structure of Parliament and the Executive, hence must be subjected to a referendum based on Article 225 of the Constitution.
“Constructively, it touches on the sovereignty of Kenyans and affects how Parliament operates. These are two of the 10 areas that Article 225 of the Constitution demands determination through a referendum,” Mr Mkangi said.
The proposal for the creation of the office of the official opposition leader mirrors the Building Bridges Initiative (BBI) that was mooted by former President Uhuru Kenyatta and Mr Odinga, which was, however, stopped by the courts over legality of the process. Under the BBI proposal, the holder of the office would have been the person who receives the second-highest number of votes in a presidential election.
The proposal was designed to create a powerful office, with all the trappings of an alternative government, similar to the House of Commons in the United Kingdom.
The office holder will appoint a shadow cabinet that mirrors to articulate alternative policies and keep the government in check.
According to some of the initial proposals being considered for the Bill, but which have yet to be agreed on, the leader of the official opposition will be allowed to identify and appoint “such staff as shall be necessary for the execution of the said office, whose remuneration, benefits and allowances shall be drawn from the Exchequer subject to the Salaries and Remuneration Commission”.
The proposals also seek to amend Article 260 of the Constitution to include the office of the leader of opposition under the category of ‘state office’. The Azimio la Umoja team proposes that the office have “all such powers and discretion necessary to solicit and mobilise for funding from all sources, including donor funding, to supplement its budgetary allocations to finance its various activities”.
However, the question on whether the Bill will be sponsored by the government or the opposition side has not been addressed. The House is currently in recess until February 14.
Before the 2010 Constitution, the office was provided for in law. Following the reintroduction of multiparty politics, Jaramogi Oginga Odinga, Raila’s father, became the first leader of the official opposition from 1993. Former Vice President Kijana Wamalwa assumed the role after Jaramogi died in 1994. Former President Mwai Kibaki occupied the office from 1998 to 2002, while former President Uhuru Kenyatta was the occupant of the office from 2003 to 2007.
Political pundits have termed the proposed law a political tactic by President Ruto to keep Mr Odinga engaged for the next five years to allow the government an environment conducive to undertaking its activities. They also argue that the office will change the structure of government, meaning there is need for a referendum—something the President does not support.
Touted as a game-changer in the way opposition will conduct itself, the proposed law, according to sources, may have in-built provisions that curtail the holder against fierce criticism of the Ruto administration.
Political analyst Javas Bigambo termed the debate on the introduction of the Bill a ping-pong game aimed at keeping Mr Odinga busy.
“If there's one distraction President Ruto may not want is an amendment to the Constitution. Any constitutional amendment referendum will inadvertently be a referendum on William Ruto's leadership. He must not entertain it in his first term if he wants to deliver on his development commitments. So while the process may start, if at all, he must ensure it is killed by Parliament,” he said.
Mr Bigambo warns that if President Ruto allows a referendum to establish the office, he will be seen as struggling for legitimacy. “All he (President) needs to do is deliver on solid programmes that will give no fodder to his opponents,” Mr Bigambo said.
Dr Samuel Mbutu from the University of Nairobi told the Sunday Nation that the Bill is a brilliant idea by President Ruto to tame the opposition but was quick to point out the nightmare that will come on its actualisation.
“For instance, that bill will cause a major constitutional shift, which will have to be subjected to a referendum. Referenda in this country are another story. In short, this bill is going nowhere. It won't have any effect on the litmus paper as the Azimio leadership has bigger goals than that,” Dr Mbutu said.
According to the political science lecturer, Azimio is still bitter with the outcome of the August presidential election and may not support the Bill or demand reintroduction of the BBI, which they have already said had all the proposals being made by the Kenya Kwanza Alliance. Some critics have questioned President Ruto’s push to review laws given that he led a spirited campaign against the BBI.
“It may not be easy for the KK (Kenya Kwanza) brigade to convince them with this piecemeal reform. The bill won't change the attitude of the Azimio hardliners,” Dr Mbutu said.
Dr Masibo Lumala from Moi University warned Kenya Kwanza against establishing an office as a stop-gap measure to tame an individual and instead make laws for posterity. “The leader of opposition is supposed to be independent, you cannot be a leader of opposition courtesy of the President because that essentially means you are like his Cabinet Secretary.”
In all these arrangements, Dr Lumala said it is Deputy President Rigathi Gachagua that should be worried about what the President is trying to do. “We should ask ourselves what the President is doing in readiness for 2027 because we know he is capable of campaigning for five years,” Dr Lumala said.
In a shadow Cabinet arrangement, the leader of opposition appoints people to specific areas of policy to challenge their counterparts in government. On Tuesday in a meeting with Kenya Kwanza MPs at Windsor, President Ruto, while telling his troops to support the Bill, argued that it will even work in favour of the Executive as the opposition will now have a defined structure on how they operate and will now be reminded to operate within the law.
Nominated MP John Mbadi said he might not know the intention of the Bill but pointed out that it was a mistake to adopt a system that ignores the opposition leadership.
Homa Bay Town MP Opondo Kaluma now argues that the move by President Ruto to support the creation of the office of the leader of opposition, is a scheme by the government to introduce the position of Prime Minister. “The Bills published to establish the position of the Official Leader of the Opposition are all in vain and unconstitutional. The current Constitution establishes a presidential system of government in which there is no opposition but the Minority Party in government. Such will also create the Office of the Prime Minister, which is the proponent’s end game,” he said.
Vihiga Senator Godfrey Osotsi yesterday told the President to include all the issues the BBI had for Azimio la Umoja to support his proposals
“Although the establishment of the office of opposition is long overdue, we want to review the government's proposal first. President Ruto should agree to a referendum where the issues we raised in BBI are included.”
Justice and Legal Affairs committee chairman George Murugara dismissed the assertions that the Bill is aimed at taming Mr Odinga, saying it is done out of respect. “Why should you ignore someone like Raila Odinga who got 6.9 million votes? I need to be going to his office, he asks me questions as I ask him for the betterment of our government,” he said.
Lawyer Peter Wanyama argued that entrenching the National Government Constituency Development Fund in the Constitution will interfere with devolution, hence requiring a referendum. He added that the Supreme Court decision on the BBI complicated the process of amending the Constitution, but lawyer Charles Kanjama said the President is allowed to initiate such a process through a parliamentary initiative.
