The Presidential Oath of Office is the gravamen that makes a Constitution sacrosanct. It cannot be changed with the active support or agitation of the sitting President. The following are my reasons for holding such a position. When President Uhuru Kenyatta was sworn for his second term, the following is what he swore to.
Holding a Bible on his right hand as he took the oath of office, he read: “I swear that I will be faithful and bear true allegiance to the Republic of Kenya; that I will obey, preserve, protect and defend this Constitution of Kenya, as by law established, and all other laws of the republic; and that I will protect and uphold the sovereignty, integrity and dignity of the people of Kenya.”
He also pledged to “Do justice to all in accordance with this Constitution, as by law established, and the laws of Kenya, without fear, favour, affection or ill-will.”
I hope and pray that those charged with advising the President on matters constitutional are diligent and faithful, actively doing their job as befits the severity of their engagement.
Deputy President William Ruto also took an oath, saying: “I will diligently discharge my duties and perform my functions to the best of my judgment. I will at all times when so required faithfully and truly give my counsel and advice to the President of the Republic of Kenya.”
The Constitution has defined who we are and has built a hierarchy that the people have to respect. That is why the President swears to do justice to all in accordance with the Constitution and the laws of Kenya, without fear, favour, affection or ill-will. That is the insurance that all Kenyans get from the President.
All are equal
The issue of inclusivity is thus covered in the 2010 Constitution. The Constitution does not give the President the mandate to elevate anyone above others without the support of the Constitution. Kenyans are equal in the eye of the Constitution. It has elevated those it chose to elevate. Can anyone change that without breaching an article in the Constitution?
It is quite clear that the Constitution commands the President to defend it. That is the insurance that we have that people will not trash it. It is unlike other constitutions. We have a defender of the Constitution of Kenya in the name of the President. That is why he swears to protect and uphold the sovereignty, integrity and dignity of the people of Kenya. Members of Parliament and Senate also take an Oath of Office which obliges them to observe the limits of their authority and act in accordance with the powers delegated to them by the Constitution.
These oaths also serve as solemn reminders that the duty to uphold the Constitution is shared between the President, the Parliament and Senate and that it is not the exclusive authority of the Judiciary.
The Chief Justice/President of the Supreme Court, a judge of the Court of Appeal, or of the High Court, swear or affirm to diligently serve the people and the Republic of Kenya and to impartially do justice in accordance with this Constitution as by law established, and the laws and customs of the republic, without any fear, favour, bias, affection, ill-will, prejudice or any political, religious or other influence.
A Cabinet Secretary swears or affirms to uphold the Constitution. It is clear, therefore, that although the practical application of the Constitution is largely the preserve of judges, the primacy of the Constitution ultimately depends on the officers of the law, particularly, officers of each branch of government, being equally bound to respect and uphold the Constitution. These oaths complete the supremacy of the Constitution.
It is my respectful view, therefrom, that any of the officers stated above who, substantially, breaches the oath of office by supporting the mutilation of the said Constitution would be committing acts actionable at law, and could, in a proper case, be found guilty of treason. The oath is taken after assumption of office but before execution of that office; it is binding and an offender can also be guilty of perjury. The officers are bound to abstain from all acts inconsistent with the Constitution.
Hence my apprehension that unless it is an amendment of a section or some sections, the framework of the Kenyan Constitution, like that of the United State of America, is cast in stone.
- The writer is a lawyer
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