Seal: Sudi's rare show of wisdom in 'they could be jailed forever'

President William Ruto installs the public seal of the Republic of Kenya for the conferment of City status to Eldoret Municipality at the Eldoret Sports Club in Uasin Gishu County. [PCS] Government Spokesperson, Isaac Mwaura, has waffled on the whereabouts of this very critical State authority. Meddling with the Public Seal has serious implications for all concerned. On one level, it signifies the collapse of the rule of law in the country. On another plane, it casts a long shadow on the validity of contracts and covenants entered by the Government. Finally, it could lead to dire future consequences for persons in power today. The seal is literally the signature of the Republic of Kenya. It is affixed to all critical State documents to validate them. Its imprint is a bond that binds both present and future generations to the contents of such documents. This is unless they are otherwise set aside, through similar application of the seal. Covenants that governments derive their legitimacy from this signature. Such covenants may cover financial securities and borrowings, or other documents that require approval by the State Law office. Its custody in the State Law office secures public interest, against the whims of both individuals and groups. Caprices of this kind have elsewhere driven the Executive into murky waters. Idi Amin's Uganda in the 1970s stood out in abuse of the public seal. The President sounded whimsical edicts and draconian orders that led to confrontation with his Chief Justice, Benedicto Kiwanuka. The Chief Justice repeatedly overturned use of the public seal for Amin's patently illegal directives and contracts. A disgusted Amin eventually butchered Kiwanuka in September 1972. He blamed the killing on Milton Obote, whom he had overthrown in January the previous year, ahead of appointing Kiwanuka the CJ in June of the same year. Kiwanuka died for the public interest of the people of Uganda. In Kenya, the AG is the legal custodian of similar public interest, with the Judiciary as the last firewall. Under Article 156 (6) of the Constitution, the AG is charged with the responsibility to "promote, protect and uphold the rule of law and (to) defend the public interest." The AG must, especially, keep a keen eye on use of the Public Seal, to ensure that it does nothing that is extra-legal. That is why even in colonial times, the Public Seal was domiciled in the AG's office, as the State Law Office. Contestation and mystery about the home of the seal have burst into public space following revelations by former AG (and later Public Service Cabinet Secretary), Justin Muturi, that there were mischievous efforts to transfer it to the Office of the President. Earlier efforts to relocate the authority of the seal to the office of the Chief of Staff and Head of Public Service flopped in 2023. Muturi, then serving as AG, frustrated efforts by the Presidency to take over the seal. The Presidency sequestered an amendment to the Attorney General Act (2022) in the National Administration Laws (Amendment) Bill, 2023, seeking to migrate the seal. However, Muturi's office advised the National Assembly's Justice and Legal Affairs Committee (JLAC) to delete the clause. He stated that it was illegal and ill-advised. Undeterred, President Ruto issued an Executive Order that claimed to transfer the seal from the AG's office to Felix Koskei's office. Contestation on the seal's domicile sends wrong signals to Kenyans and to the rest of the world. The antennae will be up for development partners and other authorities who may pursue partnerships with the Republic of Kenya, beyond the lifespan of the present regime. Kenyans, too, will want assurance that they are not about to be lumbered with odious commitments by whimsical State officials within and around the Presidency. For foreign partners, worries will be about the possibility of future Kenyan regimes disowning covenants that the Kenya Kwanza Government under President William Ruto enters with them at this delicate time. In law, no such covenants should be entered without scrutiny and express consent by the AG. It is, indeed, the reason the seal is domiciled in the AG's chambers. The eagerness to circumvent the AG points to the possibility of commitments that the Presidency might want to wrap up without following the proper lawful procedure. Why the Office of the President would want to do such a thing is a matter of conjecture. Mwaura has hummed and hawed over the matter. On Monday, he told a media briefing that the seal had been migrated from the Attorney General's Office to the Office of the President. He reported that the Chief of Staff and Head of Public Service was now its custodian, and went on to call it "the Law." Upon finding out that it was not in fact the Law, Mwaura backpedalled on Thursday. He stated that the seal was still in the Attorney General's Office, once again "according to the Law." It is difficult to tell how many Public Seals and governing laws the Kenya Kwanza Government and its spokesperson have. What is not in doubt, however, is that the seal now risks being used to transact opaque deals, some of which could turn out to be outright illegal. As the seal is the signature of authority and legitimacy on State documents, it is not beyond political cowboys around power to literally cut across the world with the seal, locking deals with it. What is significant about this instrument is not so much about the physical apparatus being moved from Sheria House to the Office of the President, next door. It is the power that is resident in the instrument, and the authority to exercise the power. In physical terms, therefore, it is possible to have physical replicas of the instrument, even within the same office. In ambiguous circumstances as witnessed in Mwaura's shifting positions, it is possible that the authority is now obscurely straddling the two offices. Where it is harmless for scrutiny, the AG may be accorded the opportunity to scrutinize, advise, and even seal. In other cases, Harambee House may choose to be stealthy. It may then go on to seal things that Kenyans will only get to learn about in the post-Kenya Kwanza years. It is instructive that following his falling out with President William Ruto, and his subsequent exit from the government, Muturi unleashed a cocktail of appalling accusations against Ruto, all pointing to the possibility that the President presides over a felonious one-man State, backed up with privileged cowboy outriders. Muturi alleged that State turpitude was flagrant to the extent that he doubted Ruto's soundness to be the President of Kenya. He painted the portrait of a government on an urgent happy-go-lucky looting spree. He spoke of officials eager to enrich themselves unlawfully, and who would stop at nothing on this sinister mission. It is behind this backdrop that Kenyans are now in the grip of apprehension about the likelihood of a scoundrel team in government abusing the authority to employ the public seal. During his bare-it-all television interview towards the end of March, Muturi claimed that President Ruto had intercepted his (Muturi's) air journey from a foreign assignment, to get him to sign State documents. He reported that Ruto frantically demanded that the AG should sign off multi-billion shilling Adani deals in the health and energy sectors, even without studying the documents. Accordingly, the AG was directed to meet a Russian oligarch, who was allegedly waiting for him at the airport in Dubai, with the documents ready for signature. Muturi told the nation that he declined to sign, thus contributing to the bad blood that led to the final fallout. That persons with easy access to State House could be abusing power to transact shady deals has been brought into the limelight by concerns about massive sums of money that these people carry around as donations to professed public causes. Is it possible that such funds are products of extra-legal, or even outright illegal, deals in which the Public Seal could soon find itself? In a recent address doing the rounds in social media, Kapseret MP Oscar Sudi tells his audience why Kenya Kwanza must win the presidential election in 2027. "If we lose, they will jail us permanently." It is not clear why Sudi should think that anyone would want to jail him permanently, should President Ruto lose the 2027 election. Equally not clear is who else he thinks would be jailed, when he says, "They will jail us permanently." Could Sudi know something that those outside the innermost sanctums of power do not know? Could this have anything to do with use of the Public Seal and other forms of extra-legal use of State instruments? Whatever the case, illegal use of State instruments could lead to a complicated future, both for those who are today worried that they risk being jailed someday, and for many others too. Future governments in Kenya risk finding themselves lumbered with odious debts. They may discover themselves on the horns of the dilemma of whether or not they should honour illegitimate debts that were procured by their predecessors. Odious borrowings are not done with the consent of the people. Nor are they intended to be spent on anything that portends public good. They are in effect a disguised form of robbery without violence. The temptation to refuse to pay is real. Lenders are also called upon to be meticulous. They must conduct due diligence before lending in circumstances that could be odious. Those who lend to obviously corrupt and oppressive regimes, in particular, take huge risks. It is a universal principle that corrupt governments should not borrow so that they can use the money to oppress their citizens. In the 1990s, Kenya's development partners blacklisted the country because of what they saw as corruption and abuse of human rights. The infamous Goldenberg scandal, especially, was at the centre of such considerations. This scam was hoisted as the badge of bad governance in the country. Donors cited it as they either reduced or altogether cut off inflows of aid and even lending. At work here was the notion of vendor beware. Foreign lenders and partners are likely to find themselves in this space, once again. They are dealing with Kenya Kwanza in an environment in which citizens have raised the red flag over the custody and use of their Public Seal. The international community has as much interest in the use of the seal as do Kenyans. The present regime has been accused of gross violation of human rights. Abductions, enforced disappearances and other forms of violation have become the norm. Vocal Gen-Zs and keyboard warriors are the State's prime targets. To boot, the Auditor General recurrently unearths unending cases of corruption and malfeasance that each run into hundreds of billions of shillings, almost all the time. Going forward, it is going to be prudent for lenders and others who are getting into covenants with the Kenya Kwanza government to first verify that they are not walking into an odious situation with an odious Public Seal. This will help to avoid future stonewalling on performance, and obviate unnecessary court action; as well as stalling further cooperation. As for those in office today, there is a need to reflect on the future, beyond the allures of the present gravy train. They will perhaps see the wisdom behind seeking to do things the right way. It is a matter of common sense that they are going to leave office someday, no matter how soon or later. Even if their successors may not dishonour odious debts that they could possibly be dragging the country into, the possibility of retribution against them remains on the cards, as Sudi correctly observes. Sudi's confession that they could be jailed forever rings with rare wisdom. The Constitution of Kenya (2010) has shown that anything legal is possible. This instrument has been tested in many ways, and has been found rock solid. It has impeached governors and a deputy president too. Earlier, it nullified a presidential election. It has recently jailed a former governor. Only one big test remains, jailing a member of the Executive, as laid out in Article 152 (1) of the Constitution. It is the kind of test you don't want to come your way. It is difficult to think of a better way of avoiding such tests, beyond advising yourself to operate within the Constitution and the Law. In place of equivocating with high-sounding doublespeak, officers like Isaac Mwaura will add value to Kenya Kwanza by candidly reminding President Ruto about the rocky path ahead. The Public Seal is a delicate instrument that is itemized in the Second Schedule of the Constitution of Kenya (2010) as a national symbol. You meddle with it at your own risk and peril, no matter who you may be, and how much power and influence you wield today. There is also the day after tomorrow. What happens today could come revisiting - and with dire consequences. There are better ways to seal the future than this meddling with the Public Seal. -Dr Muluka is a political commentator and Secretary General for DNA Party.

Seal: Sudi's rare show of wisdom in 'they could be jailed forever'

Get Full Access for Ksh299/Week.

Related Topics

Popular this week

Latest Stories

The Standard Insider

Digger Classified

GET OUR NEWSLETTER

CONNECT WITH US

FOR THE LATEST JOB ADVERTS

DIGGER JOBS

Digger Motors

Digger Real Estate

Seal: Sudi's rare show of wisdom in 'they could be jailed forever'

Get Full Access for Ksh299/Week.

Related Topics

Trending Now

Popular this week

Latest Stories

The Standard Insider

Digger Classified

GET OUR NEWSLETTER

CONNECT WITH US

FOR THE LATEST JOB ADVERTS