Fanfare of Uhuru Kenyatta handover appeased allies

Kenya: President Uhuru Kenyatta’s decision to momentarily hand over power to Deputy President William Ruto and honour summons by the International Criminal Court last Monday has been roundly praised. But it is the high drama with which he executed it that baffled many.

Did he have to capture the nation’s attention by communicating a decision on a rather personal matter through a special sitting of the National Assembly and Senate? And did he have to append his signature on this particular gazette notice transferring presidential powers to Ruto in such a dramatic fashion – for all to see – after his speech in Parliament?

What about the captivating melodrama at dusk, which saw Uhuru leave his Harambee House office in a private car and Ruto in a presidential limousine with full escort and outriders? And what was the significance of the President queuing at the Jomo Kenyatta International Airport departure lounge the following day to board a commercial airline alongside other ordinary passengers? And during his 48 hour acting stint, was it necessary for Ruto to operate from Uhuru’s Harambee House Office and even sit on the President’s chair?

Stating that there was nothing unusual in the President handing over power to his deputy, Opposition leaders have since dismissed last Monday’s handover ceremony as meaningless fanfare. Before flying out to the US on official duty, Coalition for Reforms and Democracy (CORD) leader Raila Odinga maintained the Constitution was clear on caretaker arrangements in case the substantive President is unable to discharge his duties. He faulted Jubilee leaders for dramatising a “small procedural matter”.

Pen to paper

Equally intrigued by the drama is Chairman for the Implementation of the Constitution (CIC) Charles Nyachae. While acknowledging that this time around the handover of power was official “because for the first time President Kenyatta put pen on paper to declare his ‘absence’ from duty”, Nyachae maintains the rest of the drama had no legal relevance.

“My personal take is that the surrendering of the presidential motorcade and shedding off of other trappings of power was a mere symbolic gesture, otherwise at no point during this whole journey – to and from The Hague – did Uhuru cease being President. The Deputy President, remember, was Acting President and we need to ask ourselves the question – on whose behalf was he acting?” reacts Nyachae.

But well aware that his gesture had also elicited great excitement among some of his supporters, President Uhuru seemed to build on this fact to cement his hold on Rift Valley.

Addressing thousands of cheering Kenyans who lined up along Nairobi’s Jogoo road to welcome him back from The Hague last Thursday, Uhuru hailed his good working relationship with Ruto and stressed that his decision was a gesture of trust in his deputy: “Kwa nini uogope mwenzako kama mnashirikiana (Why would you be suspicious of your colleague if you are in a partnership?)”  

 

“Of course the President and his Jubilee crowd chose to play politics on this matter and they did it so well. I must admit that they succeeded in stealing the thunder from us (Opposition),” concedes Rarieda MP Nicholas Gumbo. 

While the Director of Political Affairs in the President’s Office, Joshua Kuttuny, does not publicly admit that politics was at play ahead of the President’s ICC trip, he concedes the so-called high drama had to be enacted because this time around there was need to do things differently.

“There were the legal demands from ICC on the President personally, as an accused, separately the AU (African Union) demanded that he snubs the court and there were considerations about the sovereignty of the Kenyan nation. A tough decision had to be made and the same communicated powerfully and effectively to Kenyans, our fellow African brothers and sisters and the world,” explains Kuttuny.

General consensus

While opinion is divided on whether the President and his handlers were playing politics with this heightened drama, there is general consensus that the President succeeded to kill many birds with one stone, in the process.

He was able, for instance, to circumvent the AU resolution of October 12, 2013 barring African Heads of State from appearing before ICC judges, to appease Kenyans by symbolically safeguarding the sovereignty of the country by appearing at ICC as an ordinary citizen, while at the same time scoring political points locally by solidifying support in Rift Valley by appointing Ruto as acting President.

Even more importantly, that single decision helped to project Uhuru in better light, as a cooperating accused person, who respects the rule of law and who complies with the ICC demands.

Owing to the latest developments, Kuttuny opines that the President has demonstrated to all that ICC is a “small matter”, which he can handle without much ado, and still be able to run government effectively.

But Gumbo observes there is nothing to feel proud about appearing before the ICC, let alone the local courts for any alleged lesser offence: “Contrary to what Jubilee colleagues want Kenyans to believe, there was absolutely nothing heroic about Uhuru showing up at the ICC, although it was admittedly a very honourable thing to do. He skillfully managed to appease everybody, including those at ICC, AU and Kenyans at large.”

Gazette notice

But Gumbo laughs off at the excitement from Ruto’s supporters and says the President’s gesture was not a matter of choice but rather a constitutional dictate: “This is a purely constitution requirement and it even states who specifically should act. Even then, one cannot overlook Uhuru’s impatience to stay in charge.  Before he even boarded the plane on the flight back to Kenya, he had his power trappings back while in The Hague because the gazette notice empowering Ruto to act as President had expired by 6:00pm on Wednesday.”

But explaining that the President is humble and well-meaning individual, who enjoys cordial relations with his deputy, Kuttuny maintains that the latest gesture to Ruto is poignant: “The DP has been operating on delegated duties while the President has been away, but this time the President made him acting President, allowing him access to instruments and trappings of power. There can never be a stronger political message than that.” While many agree on the political gesture, few are in agreement about the legal relevance of last Monday’s dramatic activities at Harambee House. But the drama aside, Nyachae observes that the main confusion stems from the word “absent”, whose meaning as used in Article 147 remains unclear.

Subsection (3) of the said Article stipulates that the Deputy President shall act as President “when the President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President.”

Still in-charge

“The Constitution does not say, for instance, that if the President is in, say Uganda or Ethiopia, then he is necessarily ‘absent’. The President may well be as far as New York in the USA, but still be directly in charge and ‘present’ in discharging his duties,” argues Nyachae.

According to CIC boss, it is clear that the President has all along considered himself ‘present’ even in instances where he has been outside the borders of the country. The import of this is that the DP has previously been discharging only delegated administrative duties and not serving as acting President.

“Where the President, otherwise decides to put it in writing, as required by the Constitution, then the Deputy President can serve as Acting President, and fully discharge the duties of a President, except for the limitations spelt out in Article 134. And this was the case this time around,” observes Nyachae.

The CIC boss says the move greatly helped the President to manoeuvre his way legally and proceed to The Hague as a private citizen.

The President’s political advisor, Kuttuny, further reveals that the decision was partly persuaded by the need to send a powerful message to Kenyans to the effect that the two Jubilee principals, Uhuru and Ruto, are capable of working harmoniously: “During the campaigns last year, our opponents in CORD kept harping on the claim that our presidential candidates were Hague-bound and that they would not be able to discharge their leadership duty.”