Legality and legitimacy have locked horns in the Kenyan political space, and if this tussle is not handled with dexterity, we could be up against dire consequences with unforeseeable costs in human and socio-economic terms.
I do not want to state — indeed, maybe it is not possible for any non-partisan to say for sure — whether Raila Amolo Odinga had the right to do what he did last Tuesday, when he had himself “sworn in” as the “people’s president.” It is in fact debatable whether his was a swearing-in, seeing as the constitution sets out the prerequisites for a swearing-in to be one.
If any one of those preconditions for a swearing-in were not met, then Raila’s swearing-in was constitutionally a non-event, and it would be foolhardy to pursue him with charges of treason. One cannot be charged with the offence of treason unless one actually commits acts that are meant to be treasonable, however treason is defined in a particular constituency.
For instance, if, from Uhuru Park, Raila had said to the crowd, “Now that you have witnessed my swearing-in, and I am now your president, let’s march to State House and remove the impostor who sits there,” that would have been treasonable. That statement on its own would have been treasonable even without the “swearing-in.” But Raila issued no such order; he simply ordered his supporters to disperse and await further developments.
I find this to have been a very shrewd step taken by the veteran campaigner that Raila is. No treason was committed, but a strong message was sent out from Uhuru Park, that what is legal is not necessarily legitimate.
If the technical legal provisions of the constitution and the enacted laws confer legality on you but you fail to attach legitimacy to that legality, you ought to know that your rule can be guaranteed only by the police and the military.
Raila’s boycott of the election rerun effectively took the wind out of Uhuru’s sail. It is even possible that by insisting that sweeping changes be made in the electoral processes and personnel prior to the rerun, he knew there was no material time for his demands to be met.
Still, it may not be wise to trash his claims that doing a rerun under the same circumstances that had led to the annulment of the election results would be tantamount to rerunning the same fraud committed in the earlier election.
So, what we have now is the person who was legally installed as president having to compete against another, who says, look, you may be legal but you are illegitimate, because the majority, who happen to be in my corner, believe you stole the election. Without going back to US President Donald Trump and his quarrel with estimates of crowd size at his inauguration, I would say the crowds at Raila’s mock investiture were impressive.
As if to emulate Trump in his argument with the media, the Kenyan government decided to stop “fake news” by blocking a number of television stations from airing the event. They thus kept the majority of the Kenyan people in the dark as to what really went down at Uhuru Park on that day.
Our governments usually impose these restrictions when they are scared of exposure over something they don’t want their people to know. Usually it is to do with the endemic corruption in the ranks of public officials, whose airing before the public would result in government losing face, and maybe the next election.
One has to ask oneself what the ban on television material was in aid of. I incline to think that, if there was any whiff of treasonable behaviour on the part of Raila and the government was intent on arresting him and taking him to court, it would have been in the interest of government to encourage maximum coverage — and viewership — of this event with a view to collecting millions of eyewitnesses who would then attest to what they saw on TV.
Unfortunately for government, they behaved as if they were dealing with pornographic material, which they did not want the public in East Africa to watch, simply because our governments treat us as if we were children.
I suspect the government knew in advance that the crowd might suggest that the election did not give the result the people had expected.
Jenerali Ulimwengu is chairman of the board of the Raia Mwema newspaper and an advocate of the High Court in Dar es Salaam. E-mail: [email protected]