NAIROBI, Kenya, Feb 15 - Attorney General Amos Wako on Monday clarified that Prime Minister Raila Odinga does not have powers under the law to suspend a Cabinet Minister even in his capacity as supervisor of government.

Mr Wako however said the Prime Minister may only exercise such powers if the President assigns him under Section 4 (1) ( c ) of the National Accord and Reconciliation Act, 2008.

“The power to suspend therefore under the current constitution as modified by the Act, can only be done after full consultation,” he said and added that he had forwarded the statement to the two warring Principals and also to the members of the Diplomatic corps.

And Mr Wako was more categorical, in an apparent response to Mr Odinga’s earlier assertion that he was entitled by law to suspend a Cabinet minister in his capacity as supervisor and coordinator of government.

“The authority to co-ordinate and supervise does not of itself confer a power to suspend.”

“It may be argued that the President can assign such a duty under Section 4 (1) ( c ) of the National Accord and Reconciliation Act.”

Mr Wako told reporters that his two-page statement was only an “opinion which only addresses legal aspects and does not address the issue of political accountability of Ministers.”

He however, holds the opinion that there was need for the two coalition partners to not only work together in good faith but also ensure that they “are seen to be working together to avoid plunging the country into a crisis.

“Any perception that they are not working together but at cross purposes undermines the Coalition and its objective of implementing a coherent and far reaching reform agenda……..and to create a better, more secure, more prosperous Kenya for all.”

Disastrous results.

He said if unchecked, the results of the ongoing wrangles can be “disastrous.”

“It could lead to a breakdown of the coalition government developing into a constitutional and political crisis, making it difficult to address the reform agenda, adversely affecting security and possibly precipitating a premature General Election,” he said and appealed to the coalition partners to sober up and provide a conducive and enabling atmosphere to address the serious issues confronting this nation.

Below is Mr Wako's statement in full:

Prior to the enactment of the Constitution of Kenya (Amendment) Act No. 3 of 2008 and the National Accord and Reconciliation Act 2008, the President had absolute discretion in appointing Ministers from among members of the National Assembly.  With the enactment of the two Acts the powers of the President were modified to the extend that the President could appoint a Minister after “full consultation” with the leader of the other Political Party in the Coalition and could remove such a Minister with the “concurrence in writing with the leader of that Party” (see Section 4 of the National Accord a Reconciliation Act 2008).

By law, the power to appoint, unless otherwise expressly stated, includes the power by the appointing authority to exercise disciplinary control over the person so appointed including removing, suspending, dismissing or revoking such a person from office.   The power to “suspend” therefore under the current Constitution as modified by the Act, can only be done after “full consultation”.  The authority “to co-ordinate and supervise” does not of itself confer a power to suspend.  It may be argued that the President can assign such a duty under Section 4(1)(c) of the National Accord and Reconciliation Act.

The basic principle that underlines this Coalition Government is the commitment “to work together in good faith as true partners through constant consultation and willingness to comprise”.  It is absolutely vital that the two Principals must not only work “together in good faith as true partners” but must also be seen to be so “working together by the populace”. 

Any perception that they are not working together but at cross purposes undermines the Coalition and its objective of “implementing a coherent and far reaching reform agenda…………and to create a better, more secure, more prosperous Kenya for all”.  This can have disastrous results for this country at a time when we are nearing the completion of having a new constitution and the electoral issues are being addressed by two independent commissions. 

This if unchecked could lead to the breakdown of the coalition Government developing into a constitutional and Political crisis, making it difficult to address the reform agenda, adversely affecting security and possibility precipitating a premature General election.  I would therefore appeal to all of us to sober up and provide a conducive and enabling atmosphere to address the serious issues confronting this nation including, on a priority basis, getting at least a new Constitutional dispensation.

Lastly, the war against corruption can only be won if it is undertaken with due regard to the Rule of Law and due process.  I would therefore make a strong appeal for all parties concerned that the war against corruption should not politicized and that the relevant institutions be allowed to execute their duties independently without undue interference or influence.

This opinion addresses only legal aspects and does not address the issue of political accountability of Ministers.

(S. AMOS WAKO)EGH, FCIArb,SC,MP ATTORNEY-GENERAL)