Oath: Kenya is a train wreck waiting to happen

Tuesday February 6 2018

Kenya's opposition leader Raila Odinga (2-L)

Kenya's opposition leader Raila Odinga (2-L) holds up a bible as he "swears-in" himself as the 'people's president' on January 30, 2018 in Nairobi. AFP PHOTO | PATRICK MEINHARDT 

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Raila Odinga’s mock swearing-in as “the People’s President” and the government’s response has exercised our imagination this week.

Unsurprisingly, the size of the Uhuru Park crowd was phenomenal. Public jubilance (sic) was clear but equally clear was the anger at the private attempts to stop coverage of the event, as shared by the Editors’ Guild in face of political interference and intimidation.

There was therefore public anger at the capitulation of the Communications Authority to political interference and intimidation, and switched off three major TV stations.

The International Commission of Jurists was the first to condemn the indefinite broadcast switch off, and this was followed by the filing of a constitutional case by a private individual seeking to find all authorities involved in breach of the public’s right to information.

There has been public anger too at the charging of a parliamentarian advocate with being present at an “illegal” gathering as well as with the administration of the oath.

The stand-off between the police and the chair of the Editors’ Guild at the Nation Centre drew out the Kenya National Human Rights Commission as well as Article 19 and other human rights organisations in support of journalists.

And, finally, there is public anger at Odinga’s opposition co-principals who failed to show up. They have been mercilessly trolled on social media but laughter aside, we are a train wreck waiting to happen. Two questions arise: The first concerns constraint and the second backing oneself into a corner.

There is no question that the Jubilants — and certainly the Attorney General who’s been issuing the supposed legal positions on the matter — are fully aware of the constraints on their options imposed by the Constitution. This is evident by their sometimes skilful and sometimes woeful attempts to ground their course of action in some flipping of the constitutional script or some hitherto buried and obscure legality. That is the cover.

Then there’s the realpolitik — to pursue the desired course of action anyway, in full knowledge that doing so will successfully be challenged in courts. This is obviously contemptuous of the rule of law.

If we were to read things literally as we do, we are right to be outraged. But constraint does factor into what the Jubilants do, just not the way we expect it too.

Ditto the opposition, who are fully aware of the constitutional constraints imposed on it, not least because they’re being hammered with them all the time. So they’ve decided to push the limits of those constraints to the maximum.

Despite the ludicrous allegations by government, the opposition isn’t fomenting an armed insurrection. They’re basing their actions on their reading of their rights to expression, association and assembly. The supreme irony being that even that is being deemed dangerous and threatening to the state (note: The state, not the nation).

They’re clear they want what happened in August discussed and dealt with. Their data is finally in the public domain and at least some external academics have begun taking it seriously enough to analyse and assess it.

But reason tends to fly out the window when we back ourselves into a corner. The Jubilants are in a corner. The opposition are too. This is a dangerous situation.

It’s time to de-escalate and for sober minds to prevail, particularly within Jubilant circles because the power is really in their hands.

L. Muthoni Wanyeki is the Africa director of the Open Society Foundations. [email protected]