Falsehoods and political madness aside, mooted PM office is lawful

William Ruto

Deputy President William Ruto (R) with ANC leader Musalia Mudavadi at Musingu High School grounds in Kakamega County on April 22, 2022.

Photo credit: Isaac Wale | Nation Media Group

 O, be some other name!

What’s in a name? That which we call a rose

By any other name would smell as sweet

William Shakespeare

For their anticipated post-election government, Raila Odinga has offered the office of prime minister to Kalonzo Musyoka while William Ruto has appointed Musalia Mudavadi. Sections of Kenyans are dismissing this office as non-existent and unconstitutional. I beg to demur. The office of prime minister, once created by way of an executive order by the incoming president, will be legal, lawful and constitutional.

With the greatest respect to my friend Dr Ekuru Aukot and his committee of experts, our Constitution is a mongrel toss-up of the constitutions of South Africa and the US, with the UK unwritten constitution thrown in as condiment.

Legal systems

Understanding our Constitution should therefore take into consideration the legal systems of the RSA, the US and the UK, and their constitutional interpretations.

Under our Constitution, the president appoints the Cabinet, assigns them responsibilities and can fire them.

The Cabinet has 23 members, including the Attorney-General. The president is the Head of State and Government and is allowed by the Constitution and tradition to delegate executive power to whomsoever he wishes.

The office of prime minister got its origins in the mercantile and warring 18th Century.

 Sir Robert Walpole was the Lord Chancellor (Minister of Finance) of England from 1721 to 1742 through the reigns of Kings George I and II.

He remains the longest-serving prime minister. Because he amassed so much power and wealth, fellow Cabinet ministers called him prime minister in derision to show their contempt for his grabbing of political power.

It was only 140 years later that the office became an official and respectful title during the tenure of Benjamin Disraeli.

The word ‘Prime’ is of old French origins. Its synonyms are Chief, Principal, Excellent, Main, First, Top et al. To be called prime minister is, therefore, same as being called Chief minister, First minister, Principal minister or Main minister. In Latin, it is Primus Inter Pares: First amongst equals.

Related, Kenya needs to re-designate its Cabinet name as Cabinet minister instead of the Americanish Cabinet secretary. All African countries where we belong call theirs ministers. East African Community countries of Uganda, Tanzania, Rwanda, Burundi, South Sudan and DR Congo call theirs ministers. Why are we looking for economic, political and cultural integration when we are calling ours Cabinet secretaries?

Changing the title from secretary to minister is by an ordinary Constitutional Bill that doesn’t require public participation or referendum. Parliament needs to do this before recess.

We, therefore, don’t need to amend our Constitution to call the senior-most Cabinet minister Prime minister. It is done by an executive order. Where amendment is required is when proper restructuring and transfer of powers as either Head of State or Government are intended.

To be Head of Government or State, one needs to be president or prime minister as substantive and not delegated offices.

So, there is prime minister as a delegated office and prime minister as autonomous of the president.

Until such time when we’ll have achieved economic prosperity for all and where the ordinary Kenyans’ worry won’t be where to get the next meal but issues of ozone layer, distribution of political power will remain germane.

To uphold national unity and cohesion, every tribe must feel they are part of the national fabric and are receiving parts of the national cake.

Creating more executive offices as envisaged in BBI Bill was to address this issue. Until our GDP per capita is more than US$30,000, we must continue sharing the political morsel.

Kalonzo Musyoka and Musalia Mudavadi should rest easy, knowing that the office of prime minister is lawful.

To qualify, they have to meet the conditions given them by Raila Odinga and William Ruto.

We have been told by Prof Kithure Kindiki, who drafted the agreement between Ruto and Mudavadi, that for Mudavadi to be prime minister, he has to deliver 70 per cent of Luhya Nation to Ruto.

 On the other hand, Raila hasn’t asked anything of Kalonzo, other than to be inside the Azimio tent peeing outside instead of being outside peeing in.

For now, let the political campaigns and the attendant madness, falsehoods and subterfuge continue, but we leave behind the debate on the legality of office of prime minister.

To debate it would be to engage in puerile semantic debate. The road to the being the third Prime Minister of Kenya is open and awaits Kalonzo or Mudavadi. The gauntlet has been dropped on them.

 Kipkorir is an Advocate of the High Court of Kenya and supporter of Raila Odinga’s presidential candidacy. Twitter: @DonaldBKipkorir

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