Kenya’s sovereignty must always remain non-negotiable

By Kiratu Kamunya

Whoever proclaimed that ‘Knowledge is knowing a tomato is a fruit; Wisdom is not putting it in a fruit salad’, had sage wisdom and enough surplus to spare and even share. In this same vein, another sage should remind Kenyans that knowledge of justice, though unarguably noble, must not blur the wisdom of the pursuit of the greatest good of the destiny of any society.

This is precisely why our sovereignty, as expressed in our Constitution, must not cede its supremacy to anything else, no matter what. Not even a World War (and 2014 is the 100th anniversary of the First World War) or other catastrophe, be it by an act of God or man-made.

On April 9, Uhuru Muigai Kenyatta was officially inaugurated as Fourth President of the Republic of Kenya. Simultaneously, William Samoei arap Ruto became the Deputy President of Kenya. Signally, this was the first Kenyan presidency to be inaugurated under the new Constitution that came into force upon its promulgation in August 2010. In the preamble of this Constitution, sovereignty is vested in the people of Kenya, in perpetuity, under all circumstances.

Specifically and unforgettably, the opening line in the Constitution maintains: “All sovereign power belongs to the people of Kenya and shall be exercised only in accordance with this Constitution.”

The second line cuts to the chase and asserts, for all time: “The people may exercise their sovereign power either directly or through their democratically elected representatives.”

That presidential inauguration was the culmination of a democratic process that bequeathed Uhuru the instruments of power and authority transmitted to him by the then President Kibaki.

These instruments were symbolised by a golden sword and a leather-bound copy of the Constitution of Kenya 2010. The President also received a Standard. In effect, Kenya’s sovereignty, dignity and national pride were entrusted to Uhuru on that day and occasion.

It is supremely important that Kenyans constantly remind themselves that Kenya’s sovereignty resides in them, always. If the International Criminal Court (ICC) insists on carting away Kenya’s duly elected president, this will be a direct and an audacious affront to Kenyans’ sovereignty and supremacy over their own affairs and destiny.

And should Uhuru persist in subjecting himself to the grafted jurisdiction of the ICC — even as he remains Commander-in-Chief of the Kenya Defence Forces — this will be nothing less than an abomination committed against Kenyan sovereignty.

The supreme mandate given to Uhuru and Ruto by the people of Kenya is valid, on a renewable basis, until the next General Election. But besides being a mandate, it is a trusteeship and indeed the most solemn of them all. If Uhuru should, therefore, choose to enter the dock in the ICC, Kenyans must not forget their sovereignty, which is vested in them will be squarely placed on the diminishing path.

And if the co-operation between the Kenyan presidency and the ICC persists, all subsequent presidencies must be prepared to struggle with notions of authority, integrity and respect and honour. As a matter of fact the hauling of any legitimate presidency before an alien jurisdiction should remain in the realm of the unthinkable. Such precedence should be out of the question, beyond the pale.

The President of the Republic of Kenya, in line with the Constitution is vested with ruling and sovereign authority over this country and people, including our guests from other nationalities and sovereignties.

On their part, the people of Kenya vest the power to rule in the President on an elective, contractual and limited-renewal basis. However, sovereignty is invested in the people of Kenya always. The President of Kenya is the only person who symbolises that sovereignty in action.

Therefore, the continuation of the ICC cases is a horrendous infringement on Kenyan sovereignty, the will of the people and the electoral choice of Kenyans. The indisputable canopy over the President, the Presidency and the people of Kenya is sovereignty. Without it, the President, the institution of the Presidency and the people themselves are naked.

The writer is a lawyer