Move to collect signatures is political, it has no legal impact

Azimio la Umoja leader Raila Odinga appends his signature to start the collection of signatures during Saba Saba rally at Kamukunji grounds in Nairobi on July 7, 2023. [Boniface Okendo, Standard] Why is Azimio la Umoja One Kenya coalition so determined in its pursuit for collection of millions of signatures from Kenyans despite some lawyers and government officials dismissing it as an exercise in futility? President Ruto's allies led by his deputy, Rigathi Gachagua, have scorned the Raila Odinga-led group for allegedly wasting time arguing that there is nothing they will do with the signatures. "Even if they collect 10 million signatures, where will they take them?" asked Gachagua last week, as he contemptuously dismissed the ongoing countrywide exercise. Defence Cabinet Secretary Aden Duale also clarified that collection of signatures by Azimio has no constitutional bearing because the supreme law clearly provides that the process of removing the President and Deputy President is through impeachment. He told Azimio that what they are doing is illegal because grounds for the impeachment of holders of the two offices are clearly stipulated under articles 145 and 150 of the Constitution respectively. But the Azimio team is nonetheless more focused on achieving its revised target of 15 million signatures as soon as possible with Raila announcing they intend to achieve it in less than four months. Raila increased the number to be appended last week when he unveiled Tumechoka, a citizen's initiative. He announced is aimed at collecting 15 million signatures to force President Ruto out of office. He said any Kenyan can access the digital signature collection platform. He also informed supporters that they have already manually collected 1.2 million signatures. Azimio has been holding the anti-government protests in some parts of the country that have so far created chaos and deaths because of deadly confrontations between the rioters and police. Raila says he is conscious that Kenya Kwanza leaders have questioned where they will take the signatures and the legality of the exercise: "We don't expect them to understand. They don't understand the people's power as of now, but with time, they will." Prof Gitile Naituli, who teaches leadership and governance at Multi-Media University, explains the plausible reasons as to why Azimio leaders could be so emboldened and determined to achieve their stated goals. He thinks Raila and his allies want 15 million signatures which is more than double the seven million votes President Ruto received in last year's presidential election, which they believe will make his leadership illegitimate in the hearts and minds of the Kenyan voters. "They (Azimio) will be thinking since President Ruto won by a slim thin 200,000 margin and with a total of seven million votes, 15 million signatures legitimises them to mobilise Kenyans with confidence as their legitimate representatives," says Naituli. They could also apply the powers vested in the people through Article 1 of the Constitution which gives them sovereignty to do anything including convening people's assemblies across the country. Naituli, therefore, envisions that Azimio may be focusing on getting the moral entitlement of leading the country through enabling people to reclaim their donated power from the Executive and Parliament, two institutions they claim have betrayed Kenyans. Last week, Raila addressed the issue, telling Kenya Kwanza leadership that the signatures will not be taken to an IEBC constituted by the government or "their compromised" Parliament. "We appeal to more people to come out and append their signatures to this historic undertaking," Raila said as he launched the signature collection website. Prof Naituli thinks Raila is focused on Article 1 which was deliberately put in the Constitution to provide an alternative because there is only one way through which the president can be impeached - that is through Parliament as provided in Articles 145 and 146. Article 144 also allows for a sitting president to be ousted because of incapacity again through Parliament where an MP can move a motion which if passed is taken to Chief Justice to pick a five-member tribunal that can prepare a medical report to be taken back to parliament for ratification. The Impeachment process under article 145 can only be applied in a case of gross misconduct, crime under international law or gross violation of the Constitution by the president. Again an MP in the National Assembly moves a motion but now supported by a two thirds majority, after which the Speaker notifies Senate which then debates and with two thirds support sets up an 11 member committee to investigate and decide. The president is allowed to be heard or represented before the committee retreats for decision making and if found guilty he or she is again supposed to defend themselves against the charges. That is the process Azimio is not prepared to take because it appears they have decided to go directly to the people. In Prof Naituli's analysis, that is the message of their ongoing demonstrations. "If bunge (Parliament) has been captured, the citizens can decide to reclaim their power because they only donated it to the three arms of government but did not surrender that authority," said Naituli. Speaking as a scholar, he is of the opinion that the opposition could therefore easily collect the signatures and then convene a people's assembly because the Independent Electoral and Boundaries Commission is currently not constituted. He argues that such a process is ideal for them because they will not be committing a treasonable act of forming a government. Some senior lawyers have however dismissed Azimio's effort as a waste of time because there is nothing meaningful they will do with those signatures while other critics also argue it will be almost impossible to raise 15 million signatures. Dr Ekuru Aukot of Third Way Alliance party last week argued that the signatures cannot be used to remove the Kenya Kwanza government from power because the process is not provided for in the law. "Azimio is lying to Kenyans that if they collect 15 million signatures, they will remove Ruto from office. It is a lie because nowhere in our constitution is it written that collection of signatures will remove a president," said Aukot. He advised Raila to instead rally the leadership of the minority side and his parliamentary whips to table a motion of impeachment because that is what the constitution allows them to do instead of wasting Kenyan's time and engaging in economic sabotage. The opposition leaders early this week remained adamant that the process will proceed and announced that more than 1.2 million people have so far penned their signatures to Azimio's anti-government drive that began over a week ago. Narc Kenya Party Leader Martha Karua had earlier said 10 million signatures would be collected, before the figure was revised to 15 million. She clarified that the signatures will serve as a tally of Kenyans who support Azimio's protests. This is not the first time Raila is leading a signature collection exercise, having engaged in a similar drive dubbed Okoa Kenya that was initiated by the opposition Cord coalition party after the 2013 presidential poll. It was rejected by IEBC then chaired by Ahmed Isaack Hassan in March 2016 after they failed to raise the required threshold of signatures. The Cord leadership wanted Kenyans to vote on whether they wanted funding for counties to be increased from 15 to 45 per cent of the total audited and approved national revenue had Cord succeeded at the time. Some ODM members like Bondo MP Dr Gideon Ochanda have scoffed at the signature collection. "I do not wish to belittle what the Azimio people are doing. The proponents of signature collection exercise may have known how it will be useful for them but from my understanding it may just be to try and show how popular the idea of removal of president is but will not be useful beyond that," Ochanda said.

Move to collect signatures is political, it has no legal impact

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