Top lawyers and law scholars reacted sharply over AG Githu Muigai’s threat to arrest and charge Raila with high treason if he dares goes for swearing in on 12th December;
Here are some of the reactions that knocked the AG;
Donald Kipkorir: ‘With most tremendous deference to my friend & teacher, AG Githu Muigai, his interpretation of intended “swearing” of Raila Odinga is lazy, incoherent, false & court jestering ..Treason is when one plans to incapacitate the President or to remove him contrary to the Constitution. On that note …..
Thing one – Githu is puga
Thing two – Constitution my foot
Thing three – Goodnight
With most tremendous deference to my friend & teacher, AG Githu Muigai, his interpretation of intended “swearing” of Raila Odinga is lazy, incoherent, false & court jestering ..Treason is when one plans to incapacitate the President or to remove him contrary to the Constitution.
— Donald B Kipkorir (@DonaldBKipkorir) December 7, 2017
PROF MAKAU MUTUA: “…If I were the Attorney General of the republic of Kenya, I would gather the temerity, face Uhuru on his face and lecture him in black and white, about the legal texture around the impending Odinga’s 12th December coronation. I would tell my “boss” that in as much as we try to camouflage under the illusive jurisprudential interpretation of the law, to legitimise his stay in office, the Odinga’s inaugural has a very strong legal anchorage in our constitution. This is in actual sense, irrefutably true.
The moment Raila joined the two extreme dots together, with the idea of the People’s Assemby, his intentions escaped the wrath of treason. Nowhere in the constitution 2010, is such a move treated or otherwise held as treasonous. And by the way, Raila Odinga is very smart. I must commend him for being too selective and provident in terms of choosing his legal advisors. He’s surrounded by the country’s top cream in the legal arena. I can unequivocally assure you that Odinga will have his way come 12th December and any sane lawyer would be with me in the same wavelength.
Dr Boaz Were
The AG’s Media Briefing this Morning Deserves Treatment with Unmitigated Contempt
The people’s Assemblies, which the AG, Githu Muigai says is non-existence in the Constitution is actually an element of direct exercise of sovereign power. It was an absurdity for the AG’s failure to grasp this in his media briefing this morning. His profound orientation in the meaning of ‘direct democracy’ would be fairly remedial.
Direct democracy is not just synonymous with direct voting, plebiscite, initiative or recall, but is also firmly embedded in Assembly democracy, where decisions are directly made by People’s Assemblies.
Greek City-States, particularly Athens had long adopted this version of democracy for three fundamental reasons: social class conflict to curb the political power of a dominating oligarchy; processes toward political territorial autonomy, or independence for legitimizing and integrating the new state; and processes of democratic transformation from authoritarian rule. It is patently evident that Assembly democracy is an effective device for tempering absolutism.
Verily, Kenya has one of the most liberal constitutions around the world that provides for direct exercise of sovereign power-Article 1(2). But even more important for the purpose of Raila’s planned swearing in ceremony is the articulation in Article 1(3), which asserts that, Sovereign power under this Constitution is delegated to the following State organs,…(a) Parliament; (b) the national executive and the executive structures in the County government; and (c) the judiciary and Independent tribunals.
The contest here therefore is between ‘delegated’ power and ‘undelegated’ power! The power that the Jubilee government claims to have is ‘delegated’ power. This is the power that emanates from the 38 percent of the 19.6 million registered voters who voted in favour of Uhuru Kenyatta. This is the actual power that the Constitution delegates to the executive or the President of the Republic of Kenya. However, there is another ‘undelegated’ power that oozes from 62 percent of the 19.6 million registered voters who boycotted elections in favor of Raila. This power is not delegated by the Constitution and is supposed to be directly exercised by people.
It needs to be cleared from the minds of Jubilee affiliates that Raila is not after the delegated power, but has gallantly expressed interest in undelegated power. Raila’s demand for the leadership of delegated power is what should be treated as treasonous. This is the power by which the Constitution endows the executive.
As it stands right now, leadership of the undelegated power is untenanted and Raila has only democratically expressed his desire to occupy it. This is what the Jubilee administration considers a ‘bitter pill to swallow’. It certainly makes them growl and howl! It is important to note, however, that sometimes a country needs to swallow a bitter pill in order to get back its good health.
Nothing could be further from the truth that Raila’s planned swearing in ceremony is within the confines of the law, only that it is wildly unprecedented. The AG’s sentiments in media briefing this morning should therefore be treated with unmitigated contempt!
By Boaz Were – Constitutional Law Scholar, University of Szeged.