A clause in the framework agreement signed between President William Ruto and Opposition leader Raila Odinga could prove to be a poisoned chalice for the former Prime Minister in the bi-partisan talks.
Opposition politicians are reading mischief in the clause that stipulates that the National Dialogue Committee will submit "a list of agreed and unagreed issues" to Parliament for consideration.
The provision seems to suggest that the two houses of Parliament will have the final say on issues where the team may fail to reach consensus, opening up the dialogue to a battle of numbers between the two rival leaders in the National Assembly and the Senate.
President Ruto has the upper hand in both houses, leaving Mr Odinga exposed as a potential loser at the negotiating table.
"The final report and proposals of the committee will include a list of agreed and unagreed issues. The final report and proposals of the committee shall be submitted to the respective coalition leaders. In addition, the final report and proposals of the committee shall be submitted to the [leaders of the majority and minority parties] of each house of Parliament," reads the framework agreement signed on Wednesday.
It adds: "Upon submission of the final report and proposals of the committee, the leader of the majority party and the leader of the minority party of each house of Parliament shall table them and ensure that any proposed reform is introduced in Parliament."
Orange Democratic Movement chairman John Mbadi and Kitui Central MP Makali Mulu, on the side of the Azimio la Umoja One Kenya Coalition Party, described the provision as malicious and deliberate. They said the talks would only have a meaningful outcome if the committee reached consensus on all agenda items before submitting them to Parliament.
"This provision is very dangerous. I don't know why our team agreed to include it. It will create space for people to develop a hardline stance on certain issues," said Mr Mbadi.
"Kenya Kwanza will get their way because they have a majority in parliament. The committee has to agree and finalise its report before it is tabled. The team was set up to agree not to submit a report for Parliament to decide on," he added.
Mr Mulu, a Wiper MP, said taking the contentious issues to the plenary would put the Opposition at a disadvantage.
"The issue of numbers would come into play. Let the dialogue committee try as much as possible to reach consensus on all the issues. Anything they do not agree on should not be included in the final report," Mr Mulu said.
But Jubilee secretary-general Jeremiah Kioni, who is also a member of the technical team at the talks, said the clause was meant to ensure that the committee produced a report within the stipulated 60-day timeframe.
He insisted that there was no plan for the committee to surrender its mandate to Parliament on contentious issues.
East African Legislative Assembly MP Kanini Kega and Machakos Deputy Governor Francis Mwangangi — both allies of President Ruto — said any disagreement on the issues at the committee level would be reflected in Parliament as it would imply differences between President Ruto and Mr Odinga.
"Let them agree so that whatever goes to Parliament is something agreed by the two leaders. Let them reach a consensus because that is the only way," said Mr Mwangangi.
Mr Kega said that, if they could not agree on any of the issues at committee level, they would not agree in Parliament.
"Whatever is not agreed at committee level should not come to Parliament because it will drive a wedge," he said.
The committee agreed to discuss all the agenda items proposed by both the ruling alliance and the Opposition in a major climbdown by President Ruto.
President Ruto and his allies had vehemently rejected any discussion on the disputed presidential election results, saying, the matter had already been settled by the Supreme Court, which upheld his victory.
Earlier this year, Azimio released figures purportedly from an Independent Electoral and Boundaries Commission whistleblower claiming Mr Odinga had won with 8,170,355 votes against President Ruto's 5,919,973.
The Independent Electoral and Boundaries Commission (IEBC) declared Dr Ruto the winner of the 9 August 2022 race after he polled 7,176,141 votes (50.49 per cent) against Mr Odinga's 6,942,930 votes, representing 48.85 per cent.
President Ruto had also rejected talks on the cost of living, arguing that the Finance Bill 2023, which contains the new tax measures, was in court. Azimio lead negotiator Kalonzo Musyoka had on Wednesday urged the country to ignore the naysayers as the talks were meant to succeed.
"If there is a moment for us to stand with this country, it is now. We continue to reiterate that this is a serious national dialogue. And we are determined as a team to make sure it happens.”
“We urge Kenyans to ignore the naysayers who feel threatened," said Mr Musyoka, who is co-chairing the talks with National Assembly Majority Leader Kimani Ichung'wah.