Lawyers were sharply divided over the legal implication of Raila Odinga’s swearing in at Uhuru Park as the ‘people’s president’ yesterday.
Whereas some lawyers agreed that the ceremony was within the law, others argued that the entire exercise was illegal and that Raila should be held responsible for going against the Constitution.
Former East Africa Law Society chairman James Mwamu argued that Raila’s swearing in was constitutional although it lacked the legal backing to allow the Opposition leader to assume State authority.
“The oath was based on Article One of the Constitution, which gives power to the people and was lawful. But legally speaking, he and Kalonzo Musyoka lack the instruments of power to assume authority of the office of the President or the Deputy President,” said Mr Mwamu.
He argued that the oath taken by Raila was symbolic for millions of his supporters to show that they had a president.
He said what should worry people more was not the swearing in but what Raila, his co-principals and the people’s assemblies in the National Super Alliance (NASA)-controlled counties would do next.
Mwamu maintained that it would be impossible to pin treason charges on Raila since it would be difficult to sustain such a case in the criminal justice system.
“There was nothing legally wrong with the swearing in. It was just a symbolic action to show their supporters that they have a president. I wonder why the Government would have wanted to stop such an event,” he said.
Gitau Mwara was however categorical that the swearing in was unconstitutional and a legal aberration.
He argued that the event had no legal basis given that there was no State structure under Raila’s ‘presidency’.
“One cannot tell if it was constitutional or unconstitutional because it was something unknown in any constitutional provision. The only person who understood the significance of the entire swearing in was Raila himself,” said Mr Mwara.
Attorney General Githu Muigai is on record warning Raila that he risked being charged with treason if he went ahead with the ceremony.
According to the AG, it was illegal for the Opposition leader to be sworn in because this was not provided for in the Constitution.
Prof Muigai argued that the Constitution expressly provided who could swear in the president, including the time and venue.
But lawyer Demas Kiprono disagreed with the AG’s opinion on the aftermath of the swearing in, arguing that it would be impossible to charge Raila or any other NASA principal with treason.
“You cannot charge a person with treason for swearing in himself. That can only happen if they resorted to violent means to assume power or overthrow the Government. The only thing they can be charged with is illegal assembly,” said Mr Kiprono.
He however stated that as much as NASA had the right to assemble, they had no legal backing to swear in Raila and that the methods used by lawyers TJ Kajwang and Miguna Miguna were ‘extra-constitutional”.
He said the Constitution was clear on the instruments of power and showed that only the Chief Justice could administer the oath for the office of the President.