Court rules Raila's swearing-in as 'people's president' was illegal

Raila Odinga takes the oath of office as the ‘people’s president’ at Uhuru Park in 2018. [File, Standard]

Orange Democratic Movement (ODM) party leader Raila Odinga’s swearing-in as the ‘people’s president’ at Uhuru Park was a breach of the Constitution, the High Court has ruled.

Justice Anthony Mrima in his judgment said that once former President Uhuru Kenyatta was declared as the winner by the Independent Electoral and Boundaries Commission, then Raila’s swearing-in was a foreign and illegal phenomenon to Kenya.

He also stated that the swearing-in conducted on January 30, 2018, was a bid to establish a government other than one provided for in the Constitution and which was a direct violation of contravention of Article 3(2) of the supreme law of the land.

“In light of the foregoing, it is the position that the events of January 30, 2018, as perpetrated by the Rt Hon Raila Odinga ran afoul with the Constitution. The installation of the ‘people’s president’ by way of swearing in was, hence, an attempt to establish a government otherwise than in compliance with the Constitution,” said Justice Mrima.

Mrima said that the then government was entitled to switch off all means of communication, including television.

According to him, by switching off broadcasting signals, the Jubilee regime was protecting the government and was acting in public interest.

The judge asserted that covering the event live would have amounted to subversion and undermining the democratic will of the people. He said it would have also caused widespread civil unrest.

“The Constitution does not provide for any other form of a President of the Republic. Therefore, the phenomenon of a ‘people’s president’, propounded by the Rt Hon Raila Odinga and his supporters, was not only foreign to the land, but also in direct contravention of Article 3(2) of the Constitution,” he said.

Justice Mrima’s judgment is a departure from a separate judgment four years ago over the happenings of the same event.

Chief Magistrate Stephen Mbungi ruled that the oath taken by the ODM leader after the disputed 2017 presidential election was not unlawful, and that he would have only been held responsible if he used his swearing-in to commit a crime.

“From the content of the oath, Hon Raila Odinga swore himself to the office of the people’s president which does not amount to any crime. He would have only breached the law if he swore himself as the President of the Republic of Kenya,” ruled Mr Mbungi.

According to the magistrate, the swearing-in would have only amounted to treason if Raila and the organisers of the event declared their intention to overthrow the government.

Further, the manner in which the President is sworn into office is provided for in the Constitution, and that what Raila and his supporters did on that day was not unconstitutional.

“The oath does not talk of the people’s president of the Republic of Kenya. It only talks of the President of the Republic of Kenya. It was not unlawful for it did not bind Mr Odinga to commit any crime or did he swear himself to a lawfully established office when not qualified for it,” he ruled.

Mbungi made the declarations when he acquitted Ruaraka MP Tom Kajwang’ from charges of treason and taking part in unlawful assembly. 

At that time, Raila and the National Super Alliance refused to recognise President Uhuru’s re-election and resolved to swear him in as the people’s president.

Raila’s oath was administered by Kajwang’ and lawyer Miguna Miguna who was also arrested the deported to Canada on allegations that he is not a Kenyan citizen.

Kajwang’ was charged before with two counts of committing a capital offence of treason and for taking part in an unlawful assembly.

The magistrate was of the view that the MP acted like the Chief Justice by mode of his dressing, which was wrong since the law prescribes the attire to be worn by the holder of the office when swearing-in the President.

On the second count of organising an unlawful assembly, Mbugi ruled that the meeting at Uhuru Park in Nairobi did actually take place, but there was no evidence to prove it was Mr Kajwang’ who organised it.

The case before Justice Mrima was filed by the Law Society of Kenya.  The lobby had sued the Communication Authority of Kenya Director General, the then Information Communication and Technology Cabinet Secretary Joe Mucheru, and former Interior Cabinet Secretary Fred Matiang’i.

 LSK had also sued the Attorney General and roped in The Standard Group PLC, Nation Media Group and Royal Media Services.

The society argued that the actions by Mucheru and Matiang’i were in violation of the freedom to seek, receive and impart information.

Additionally, it argued that by switching off the television channels, they violated Article 45 of the Constitution and Section 5A of the Kenya Information and Communications Act. The Article and Section guarantee the independent of the media.

The judge also heard that the government never gave the media houses a chance to be heard before the switch off.

Despite the case revolving the three media houses, they never participated.

In response, Mucheru told the court that he had informed the media houses of possible security risk.  He argued that he had been informed by Matiang’i that live events were stoking unrest after the hotly contested presidential election.