E LE C TION S/G EN/2017

JIMMY WANJIGI,
KWACHA GROUP OF COMPANIES LTD,
GENERAL MATHENGE DRIVE,
PO. BOX 79699 00200, NAIROBI
22nd May 2017

Dear Jimmy,

LEGAL OPINION REGARDING NASA AGREEMENT

Sorry for taking longer than I anticipated in responding to your email. However, I
did not want to send you a rushed reply in view of the magnitude and National
implications in regard to your query.

Firstly, the matter of the NASA agreement is straightforward from a legal point of
view. NASA, unlike NARC to which it is closely compared, or Jubilee, did not
transform itself into a political party. This is a critical flaw, or advantage
(depending on where you stand) in any agreement reached under NASA.

Because it is not a political party, Kalonzo has to vie within Wiper, a useless
appendage that can not form government, or defect and rejoin ODM which will be
the party in power. This alone has the effect of rendering the current agreement
null and avoid, Kalonzo is about to defect from Wiper. Any promises made to the
other principals would be impossible to enforce if ODM chooses after elections, to
abandon NASA. If the principals had all gone into the elections under a party
called NASA, Raila would be elected on a NASA ticket and thus would not be able
to renege on arrangements within his own party without first resigning as a party
member, or calling a delegates conference which would include Kalonzo and
Musalia. In simple terms, if Raila wins, the NASA agreement has less value than
toilet paper!

Kalonzos saving grace would be if he has resigned from Wiper and become an
ODM member. The ODM/Wiper arrangement was not ratified by any party
delegates meeting, so ODM can disown it in a delegates conference.

For Musalia, the NASA agreement to make him Chief Minister is a double
tragedy. In scenario one, Raila chooses to give him a normal CS seat. This is not a
coalition government, it will be an ODM government so Musalia can do zero. In
Scenario two, he gets the Chief Minister appointment. As people have correctly
argued, a referendum is not necessary for this to happen, Raila can simply appoint
The problem with a simple appointment is that he will have zero powers over
the other Cabinet Secretaries, because the position will not be anchored by an
Act of Parliament! The reason that Raila had powers as the PM is that the seat
and its powers were anchored in law. That is why Parliament and the courts
could uphold his objections to unilateral Presidential actions. Musalia will serve
at the pleasure of the Presidency, meaning that without a referendum and
constitutional amendment for his seat, his powers will be far inferior to the
Presidency, both Raila and Kalonzo. He can not even claim to be number three
because his powers outside his own Ministry will not exist in law.

In answer to your last question, a coalition government under the current

constitutional dispensation would require more extensive legal changes than
were made in 2007, primarily because the Presidency is now a joint office with
the Deputy President. However, this is not a major deal breaker to your
planning. A crisis resulting from violence would come up with the right
formula, most likely by taking powers away from the Presidency. Once again,
NASA not being a political party would come back to haunt Kalonzo, because a
coalition government would be a Jubilee-ODM affair, those two being the
actual protagonists. Wiper with Kalonzo will cease to exist next week and ANC
would need to rely on favours from ODM.

At this point, the biggest danger is for the diehard Wiper members like
Muthama to understand this fact. They may whip up their followers into an
anti-Kalonzo wave and split the vote. Kalonzo must manage his followers with
whatever propaganda and denials of loss of his party that he can muster.

I remain