President Uhuru’s powers and question of a ‘coup’

President Uhuru Kenyatta Photo:Courtesy

Debate over President Uhuru Kenyatta’s legitimacy after the 60-day window for fresh presidential election lingered on despite the Attorney General Githu Muigai pronouncing himself on the matter.

A day after the President declared Supreme Court’s annulment of the presidential election as “a coup” and called on Parliament to address “ambiguities and uncertainties” raised by the decision, Prof Muigai came out to declare that Kenyatta’s rule would end once another President is sworn-in.

The AG contradicted the President’s position that elections “shall and must be held within 60 days.” Muigai said the 60-day period is not cast in stone.

The NASA lead counsel in the presidential election petition James Orengo, on Tuesday gave notice of caretaker Government presided by the Speaker of National Assembly Justin Muturi if the 60-day period lapses before elections are held.

While NASA’s Raila Odinga has vowed no elections will be held unless Independent Electoral and Boundaries Commission (IEBC) meets conditions for credible, free, fair and verifiable poll, Kenyatta’s Jubilee side has vowed to proceed with the election.

For the AG, however, the law is clear: President Kenyatta will continue to exercise his executive authority past the 60-day deadline and until a new president is sworn in.

“Transitional or caretaker Government is not recognised in law and until a fresh Government is sworn-in, the current Government is lawfully in office,” the AG said.

LEGAL REALITIES

But NASA faulted the AG saying he was misreading the law. The Opposition also maintained its resolve not to participate in or allow conduct of the October 26 repeat poll unless the irreducible minimum conditions are met.

“The AG is simply being his master’s voice. It shows how he is misreading or not reading the Constitution well. Kenyatta's remains a caretaker presidency.

 If no elections are held within the stipulated period, the Speaker of National Assembly will have to form and run a caretaker Government until elections are conducted within 90 days,” NASA co-principal Moses Wetangula said.

He insisted that there was no way the Constitution could have envisaged a perpetuation of a lame-duck presidency beyond the stipulated period. He said the Jubilee legal minds were unwilling to come to terms with political and legal realities facing the country.

“Attorney General Githu Muigai is no fool. He’s being mischievous and not telling truth. How can a lame-duck president be in full authority?” Wetang’ula posed.

Addressing a press conference, Muigai also defended President Kenyatta over accusations that he violated the law by officially opening Parliament. He said the President still enjoys a wide range of executive powers including being the Commander-in-Chief of the Armed Forces.

The only functions the President cannot perform during the period pending a new election is to appoint envoys, dismiss Cabinet Secretaries or appoint judges, he said. The AG also defended the conduct of a fresh poll outside the 60-day period and downplayed NASA threats to boycott the poll.

“The 60 days which the Supreme Court directed for fresh presidential election is not cast in stone. There will be no crisis if the IEBC does not meet that deadline, the days can be extended through negotiations or by going back to the court,” Muigai said.

Wetang’ula was categorical that President Kenyatta’s temporary incumbency would end on November 1st and immediately after, Muturi would take over.

“After the lapse of the sixty days, Kenyatta will vacate office and allow the Speaker hold brief for 90 days from where fresh elections will be held,” Wetangula said, and added that the AG’s position was laughable.

Wetang’ula, while daring the President to sack and reappoint his Cabinet if he still had the executive powers said: “He cannot appoint or sack his own Cabinet, but he has been playing to the gallery of his supporters. A tiger does not pronounce its tigritude, it pounces.”

In his address to the nation on Thursday, however, President Kenyatta seemed to acknowledge the legal uncertainties ahead when he said the Supreme Court judgment annulling the presidential election had the potential to throw the country into “judicial chaos.”

“The judgment has also created uncertainties and raised matters that require legislative attention. I have therefore requested the Parliament should expeditiously address itself to the issues raised in order to protect our country from any ambiguities that may arise from this judgment,” he said.

According to Nairobi lawyer Kibe Mungai: “There is no constitutional basis for Senator Orengo’s view that President Kenyatta’s tenure will automatically expire after November 1st.  There is even less merit for the proposition that the Speaker of the National Assembly will take over the reins of power on temporary basis.”

His counterpart Ken Ogeto said that the only other situation where the Speaker will act as President is under Article 146 which recognises that where a vacancy occurs in both the offices of the President and the Deputy President (death, incapacity, impeachment, resignation) the Speaker of the National Assembly shall act as President and an election to the office of President shall be held within sixty days.

Politically Brewed

“The Constitution does not and cannot anticipate a power vacuum. To do so would be a recipe for chaos and anarchy. Election being a process and not an event, and Article 142 (1) recognising that the President holds office for a term ending when the person next elected President in accordance with Article 136 (2) (a) is sworn in, then the only logical and sensible argument would be  that by nullifying the results, the election envisaged under article 136 (2) (a) spills over to include the fresh elections and the process only ends after the president-elect is sworn thereafter and not necessarily resulting from only the election held within 60 days under article 140(3), but any other necessary election thereafter,” said Ogeto.

President Kenyatta’s advisor on constitutional affairs Abdikadir Mohamed said the confusion was politically brewed as a red-herring.

He said Kenya’s electoral infrastructure has no place for a caretaker Government. “Why are we even talking about this. We have always been timely in our elections. The most important thing right now is to pool efforts to deliver on the poll, not to anticipate imaginary things."