Proposed law spells out stiff penalties for obstructing power transfer

President Uhuru Kenyatta hands over the ceremonial sword of power to his successor William Ruto at the Kasarani International Stadium on September 13, 2022. [File, Standard]

The Cabinet has approved a Bill that seeks to punish anybody who disrupts the handing over of the presidency.

In his last Cabinet meeting of the year, President William Ruto oversaw the adoption of the Assumption of Office of President and Transition of Executive Authority Bill, 2024, which will see persons who may come in the way of power transition fined Sh10 million, imprisonment of up to 10 years or both.

The proposed law is meant to seal loopholes and provide a smooth pathway for a president-elect to assume office even if the incumbent was unavailable to hand over the instruments of power.

A dispatch from the State House yesterday indicated that the Bill, now headed to Parliament for consideration, introduces a unified law covering transition.

Kenya has witnessed five presidents assume office in different scenarios, which included death of an incumbent as was the case with Jomo Kenyatta in 1978 when his Vice president Daniel Moi took over. 

The 2022 transition from Uhuru Kenyatta to Ruto was without drama despite their differences during the campaigns, with the incumbent suggesting he would not hand over power to his deputy because, in his opinion, he was not suitable.

Single legislative framework.

The Bill consolidates the procedures for assumption of office and the transfer of Executive authority into a single legislative framework.

“The proposed law aims to seal gaps and ensure smoother and more unified presidential transitions in Kenya. It also imposes stricter penalties for State and public officers who obstruct the transition, proposing fines of up to Sh10 million, imprisonment of up to 10 years, or both,” said a statement from the State House.

Also contained in the Bill is a provision that ensures the President-elect and Deputy President-elect receive security arrangements equivalent to those of the sitting President and his deputy.

The proposal has also catered for any unforeseen circumstances and addresses situations that may arise in the course of transfer of power, particularly where the outgoing Head of State cannot attend the swearing-in ceremony.

“In such cases, the handover of instruments of power will be omitted without affecting the validity of the swearing-in process,” the Bill provides.

The proposed law also ensures continuity in government operations by allowing Cabinet Secretaries and Principal Secretaries to remain in office until new appointments are made by the incoming administration.

It provides that the transition of Executive authority will be deemed to have been completed when the President, Deputy President, Attorney-General, Cabinet Secretaries, Principal Secretaries and the Secretary to the Cabinet assume office.

Committee appointment

Other provisions outline the role of the President-elect in the nomination and appointment of members of the Assumption of Office Committee and provide for the establishment of a Transition Centre.

In 2018, there was anxiety after the opposition leader Raila Odinga swore himself in following disputed polls. 

To avoid a scenario like the 2007 one when Mwai Kibaki was hurriedly sworn in at night after a hotly contested presidential poll, the 2010 Constitution came with strict guidelines on the time and the place for such an occasion.

The election's winner, the Constitution states, is sworn in on the first Tuesday following the 14th day after the date of declaration of the result of the presidential election if no petition has been filed under Article 140 or the seventh day following the date on which the court renders a decision declaring the election to be valid, if any petition has been filed.

“The President-elect assumes office by taking and subscribing to the oath or affirmation of allegiance, and the oath or affirmation for the execution of the functions of office, as prescribed in the Third Schedule. Parliament shall by legislation provide for the procedure and ceremony for the swearing-in of a President-elect,” Article 141(3) and (4) states.

ODM Leader Raila Odinga makes his address after his swearing in as the 'People's President' at Uhuru Park, Nairobi on 30th, January, 2018. [File, Standard]

Article 141 of the Constitution provides that the swearing-in of the President-elect must be in public before the Chief Justice or the Deputy Chief Justice.

The ceremony should not take place earlier than 10am or later than 2pm.

According to the existing law, the Assumption of the Office of President Committee is established before the President and his deputy are sworn into office after an election.

The committee is ad hoc and consists of the Secretary to the Cabinet, who is the chairperson, the Attorney General and Principal Secretaries of the ministry responsible for matters relating to the registration of persons and immigration, defense, internal security, finance, foreign affairs as well as information and communication.

Others are the Chief of the Defence Forces, Director-General of the National Intelligence Service, the Inspector-General of the National Police Service, the person in charge of the administration of the affairs of State House, Clerks of the National Assembly and Senate, Chief Registrar of the Judiciary and six persons nominated by the President-elect.

The chairperson is mandated to convene the first meeting upon declaration of a President-elect while Principal Secretary in the ministry responsible for the Cabinet Office is the secretary.

Functions and powers of the committee include facilitating the handover process by the outgoing President, organising for the security, facilities and personnel for the President-elect.

It is also mandated to co-ordinate the briefings of the President-elect by relevant public officers, facilitate communication between the outgoing and the incoming administrations, and organise the swearing-in ceremony.

On handing over of instruments of power and authority, the law states that the outgoing President should hand over a sword and the Constitution upon signing the certificate of inauguration.

Gachagua succession

However, handover does not apply where the incumbent is re-elected into office.

“The day-to-day functioning of the Government before and during the assumption of office by the President-elect is subject to the constitutional provisions regarding transition and succession of institutions, offices, assets and liabilities,” the Act states.

Following the impeachment of Deputy President Rigathi Gachagua, the Head of Public Service Felix Kosgei gazetted a 23-member committee to oversee the organisation of the swearing-in ceremony of Kithure Kindiki, his successor.

The Assumption of the Office of the Deputy President Committee is in accordance with the Assumption of the Office of the President Act.