NAIROBI: The very first preamble to the 2010 Constitution acknowledges the "Supremacy of the Almighty God of all creation". Organs of the Government and indeed all professions and the legal system function on this foundation of constitutionalism - implementation by an oath.
Oath is either a solemn statement of fact or a promise with wording to something considered sacred as a sign of verity. An oath can be judicial, taken in the course of judicial proceedings; or extra-judicial, taken outside legal proceedings.
In law, oaths are taken by witnesses and these are known as corporal oaths and are made while touching a sacred object or by parties to proceedings attesting to certain factual matters, which are referred to as assertory oaths. Oaths of office, also referred to as promissory oaths, are taken by newly appointed government officers, promising fidelity to the people of the country and the constitution before taking office. The person taking an oath invites punishment if the statement is untrue or the promise is broken. The legal effect of an oath is to subject the deponent to penalties for perjury if a statement is false.
A person can however opt to swear an affirmation as opposed to an oath. In law an affirmation is a solemn declaration allowed to those who conscientiously object to taking an oath. An affirmation has exactly the same legal effect as an oath, but is usually taken to avoid the religious implications of an oath.
Some religious minorities such as the Akorinos hold beliefs that allow them to make legally binding promises but forbid them to swear an oath before God. Additionally, many decline to make a religious oath because they feel that to do so would be valueless or even inappropriate, especially in secular courts. In some jurisdictions, an affirmation may only be given if such a reason is provided.
Under the Oaths and Statutory Declarations Act, there is no difference between an oath and affirmation. The effect is the same and so if a witness wants to be sworn in a way that the court considers to be impracticable, the court may require such a witness to be affirmed. A written statement, if the author swears the statement is truth, is called an affidavit.
Swearing an affidavit is an extremely solemn duty and the Commissioner for Oaths must not only see the deponent sign, but must administer an oath. Traditional oaths play a decisive role in African customary law and juristic value of traditional oaths still has a profound effect in customary law, though the conventional courts do not acknowledge the source. Supernatural plays an important part in most Kenyan tribes where oathing ceremonies take place.
In the colonial days, the most famous oaths to be taken were by the Kikuyu and they were of three categories; all of which were taken according to the gravity of the situation with the third category, 'gethathi' being the most serious, being taken in criminal cases. Secret oaths in the name of the Agikuyu deity to join the resistance against the colonial rule were common during the emergency period.
Breaking the oath invoked an unstoppable curse on oathers and their families. As a result, the oath became a powerful mechanism in the formation of Mau Mau and served as a precursor to Kenyan Independence in 1963.
David Gitahi, the Chairman of the Othaya Residents' Foundation, some years ago sought to stop the use of the Bible for swearing-in at public institutions, but David Majanja dismissed his petition for the reason that the petitioner failed to show which provisions of law it violated.
Before taking his oath of office on April 4, 2013, President Uhuru Kenyatta insisted that his wife, First Lady Margaret Kenyatta, hold the Bible for him and this raised some controversy, leading to an explanation from the President himself on social media. Richard Leakey, when being sworn in for a public office sometimes back refused to take an oath saying that he was an atheist. This meant therefore that oath taking in Kenya is mostly ceremonial as the same does not bind persons from acting contrary from what they have sworn.
Doctors swear to respect the Hippocratic oath. Advocates on admission and judges and magistrates on appointment do also take oaths. On August 27, 2010, the President, Chief Justice, Judges and entire civil service, parastatals and members of the Commissions took oath of office, by which they all promised to perform the duties of their offices in good faith and in accordance to the Constitution.
Despite personal promises made, do Kenyan leadership and Kenyans respect or even remember their promise to the Almighty God? Would the country be different if the value of an oath is appreciated and adhered to by political, public and judicial leadership?