Irene Githinji and Seth Onyango @PeopleDailyKe
Attorney-General Githu Muigai yesterday warned National Super Alliance (Nasa) leader Raila Odinga against the plot to have himself sworn in as the ‘people’s president’, terming it an illegality that could attract high treason charge.
The AG said any attempt to swear in any person as president, other than the one elected in line with the Constitution and in the manner provided for in law, is unlawful, illegal, null and void, noting that the punishment for high treason is death.
The government chief legal adviser said the Constitution provides own supremacy and that swearing-in of a person not lawfully declared to have won in an election by the Independent Electoral and Boundaries Commission (IEBC) is a process fully not anticipated in law and thus illegal.
“The criminal law in Article 40 of the Penal Code stipulates, that sort of process is high treason in respect of any person involved and any other person facilitating that process. No person may claim or exercise State authority except as authorised by the Constitution,” said the AG addressing the media at his office, flanked by Government Spokespeson Eric Kiraithe.
“What is the punishment for high treason? Death,” he said. The AG made the remarks as Raila separately resisted widespread calls to desist from purporting to be sworn in, saying Nasa does not recognise President Uhuru Kenyatta’s election and subsequent inauguration.
On Tuesday, US President Donald Trump sent the top diplomat for African Affairs Donald Yamamoto to speak to both Raila and Uhuru over the issue.
Raila flatly refused the overture from Yamamoto, who had asked him not to engage in a constitutional illegality. The diplomat also met Uhuru and emphasised the need to open dialogue with Raila.
On Monday, the head of the Anglican Church Archbishop Jackson ole Sapit also called on Raila to shun the planned move. But responding to remarks from the US envoy, Raila accused America of meddling in Kenya’s affairs and said Kenyans can solve their own problems.
“We will go by the results of August 8 elections in which Kenyans expressed their will… We will not be intimidated, our friends can advise us but they should not shout at us about violating of the Constitution,” Raila declared.
On several ocassions, IEBC chairman Wafula Chebukati has denied and dismissed the rigging claims by Nasa. Nasa mandarins have maintained a hardline stance that they will swear in Raila as the ‘people’s president’ on December 12, even as reports indicated the alliance had reserved 11 separate venues in Nasa-friendly counties, in what was seen as a bid to throw the security machinery off their trail.
However, Nasa disowned the reports. And on the people’s assemblies adopted in 11 counties, Githu qualified it as illegitimate and unconstitutional, saying County Assemblies passing such a motion do not possess such authority.
He said the people’s assemblies are institutions totally unknown in law, even as he cited the High Court in Kitui having pronounced itself on the matter.
The AG said the government has not been notified of the Nasa swearing-in and even if it was, no institution would accept a notification of a treasonable nature. He insisted democratic avenues exist for Kenyans to ventilate their grievances and that the country has expansive space for such, saying the people’s assembly concept has been drawn from the civil societies.
“The rule of law and functioning legal institutions are vital for good governance, which is essential to peace, security and development. The rule of law is the foundation of our republic.
We urge all parties to adhere to the rule of law and the pursuit of a greater calling,” he stated. “A few county assemblies have passed motions purporting to establish an ambiguous framework of ‘people’s assemblies’ set to engage on a mélange of discussion over the Constitution…
The concept is an alien term to the Constitution,” he added. He warned that County governments and individual MCAs enacting illegal, unconstitutional motions of this nature also stand the risk of suspension in line with Section 123 of the County Government’s Act and the possibility of by-elections in line with Section 130.
Speaking at the Nairobi City Mortuary where he had gone to condole with families and friends of Nasa supporters who died during protests against the inauguration of Uhuru, Raila insisted he will take oath of office on the basis of Chapter 1 of the Constitution. Raila insisted he won the August 8 presidential election.
“You all know I am not a coward. I will be sworn in as president on Jamhuri Day,” he said. After the prayers, 16 bodies were ferried to various destinations for burial. Majority of the victims were from Siaya and Kisumu counties. Each family was given Sh50,000 to help with burial arrangements.