The Government Thursday invoked the offence of treason to caution Opposition leader Raila Odinga against attempts to be sworn in next Tuesday.
And a defiant Raila told off US President Donald Trump’s administration that advised NASA leaders against unconstitutional actions like the swearing-in planned on Tuesday when President Uhuru Kenyatta will be presiding over Jamhuri Day celebrations.
Attorney General Githu Muigai cited Article 3(2), that provides any attempt to establish a government other than in compliance with the Constitution is unlawful, and warned any person acting in violation commits a treasonable offence under Section 40 of the Penal Code.
The section dwells, among others, on deposing by unlawful means of the President and Government with the death sentence prescribed for any person found guilty of the offence.
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It also details the offence of "being an accessory after the fact to treason and the failing to give information to designated public bodies for the purpose of preventing commission of the offence," a pointer to possible broader crackdown of opposition leaders planning the ceremony.
Raila said the Americans have no right to dictate to him what he should do, terming as hypocritical and unacceptable their statement in which the US urged Opposition leaders "to work within Kenya’s laws to pursue the reforms they seek and to avoid extra-constitutional actions such as the proposed “inauguration ceremony” on December 12".
“You (diplomats) don’t have to shout about it. Give it in silence. Do not come and shout at us and tell us we are going to violate the Constitution… Constitution my foot!” Raila said.
He questioned why they turned a blind eye when Kenyans were brutalised by the security forces, failed to talk on election fraud yet they were very loud on the consequences of his plans to be sworn in as president.
“Countries saying they are friends of Kenya have remained silent since August 8, over 205 people have been killed, and not even a single person has talked," Raila said although he did not provide evidence of the death toll.
He added: "This is the world we live in now where envoys don’t shun evil, as was the case before. Kenyans we are alone. Kenyans have their issues in their hands not foreigners.”
The NASA chief was responding to US Acting Assistant Secretary of State for African Affairs Donald Yamamoto who met him on Tuesday and also pushed for dialogue with President Uhuru Kenyatta.
Raila spoke at the City Mortuary as he consoled families of those who died following his return from the US on November 17 when police sought to forcibly break a procession of his supporters who had gone to welcome him at the airport.
Even as the NASA leader dug in, Prof Muigai, the chief legal advisor to the Government, convened a press conference to warn Raila that he risked arrest should he make true his threat.
“A swearing-in of any person not lawfully declared to have won an election by the Independent Electoral and Boundaries Commission and that is not done by the Chief Justice of the Republic of Kenya is null and void ab initio. The punishment of committing treason is death,” said Mr Muigai.
He added: “Notwithstanding the constitutional and legal outcome, there are some misguided propositions being made, suggesting to hold an unconstitutional and illegal “swearing in” of the NASA presidential and deputy presidential candidates in contravention of Article 3 of the Constitution.”
Muigai went on: "For the avoidance of doubt, Article 3(1) provides that every person has an obligation to respect, uphold and defend this Constitution. It is derisive for a candidate who boycotted the presidential poll to seek power through the back door in total violation of Article 2(2) of the Constitution which states that “no person may claim or exercise State authority except as authorized under the Constitution".