Githu’s talk of crime of ‘high treason’ is ignorance of law

Attorney General Githu Muigai

Attorney General Githu Muigai touched off a firestorm last week when – with braggadocio – he warned that NASA’s Raila Odinga would commit “high treason” were he to be sworn in as the President of the Republic of Kenya.

In Section 40(3), the Penal Code provides a mandatory death sentence for any person convicted of treason. It’s not clear what the Jubilee regime through AG Muigai was trying to say. Did they intend to prosecute, and send to the gallows, the man Kenyans call Agwambo? Were they bluffing to intimidate Raila? Or were they signaling zero tolerance for dissent?  Let’s dig deeper.

In his public rebuke of Raila, AG Muigai used body English to try and project an air of unquestioned legal acumen and the state’s authority. Government lawyers who raise their voices and cover themselves in the flag usually betray a paltry, or disingenuous, understanding of the law. Confident lawyers don’t bloviate, or spew highfalutin legalese.

If you watched opposing counsel during the Supreme Court’s petition over the August 8 election, you knew – even as a layman – which lawyers knew what they were doing in the courtroom. The loquacious and shrill PLO Lumumba took the prize for the most unconvincing. Even if he tried harder, he couldn’t have hidden Jubilee’s vacuous case. That’s how AG Muigai sounded last week.

Prof Muigai prides himself as a good legal mind. That may well be true, but often he gives the state misleading or wrong legal advice. He tells his masters what they want to hear, and not what they should hear. He’s a political hack as he proved again in attacking Raila.

In his zest to please his handlers, he made up “high treason,” a new crime not known under Kenya law. I didn’t know a Kenyan AG has the power to amend, or make up, new laws in his head and then communicate them to the public. It was sad to see a man who has a modest claim to being a scholar shrink into a political sycophant.

AG Muigai showed complete jurisprudential ignorance – perhaps willfully – of the law of treason and of Kenya’s Constitution. The archaic crime of treason was invented by absolute monarchs in Europe who purported to be anointed by God. That’s why the harshest punishment was reserved for traitors who were hanged, beheaded, burned at the stake, and drawn and quartered.

These were primitive sanctions for a primitive era. Kenyan treason law – Section 40 of the Penal Code – reads like a page out of the haunted age of imperial Europe. It seeks to punish thought and conscience. It criminalises thoughts and expressive speech about unlawful regime change. AG Muigai apparently doesn’t understand these freedoms are pillars of the 2010 Constitution. Section 40 is unconstitutional.

Explicitly prohibited

People will recall an exchange I had with AG Muigai when the Judicial Service Commission interviewed me for the position of Chief Justice. In a response, I said the “law permits all that which it doesn’t prohibit.” AG Muigai went apoplectic. This truism is known to first-year law students.

The state can’t sanction a person for an act that isn’t explicitly prohibited in the Constitution, statutes, or in common law. Otherwise, the state’s powers would be arbitrary, sweeping, and draconian. If so, the state could, for instance, arrest me for walking backwards at midnight on a deserted street. AG Muigai’s invented crime of “high treason” and his inability to see the unconstitutionality of Section 40 of the Penal Code show a despotic mind.

It should be clear to any jurist worth his salt that political crimes like treason – which were inherited from the colonial state – ought to be rethought in a democratic state. Raila – like any Kenyan – has fully protected constitutional rights to dissent.

Taking a presidential oath in a non-state ceremony is a constitutionally protected right of non-violent civil disobedience. Nowhere did Raila advocate for the violent or unconstitutional overthrow of government or regime change in the context of the oath. If anything, the oath would have been predicated on the constitutional sovereignty of the people from whom all power springs. AG Muigai should’ve unpacked the crime of treason before trotting it out as a weapon against legitimate dissent.

AG Muigai didn’t seem to understand one more thing about treason. It’s the only crime that I can think of that’s punished when it fails and rewarded when it succeeds. The would-be traitor becomes the head of state when she succeeds.

My larger point is that the illegitimacy of the Jubilee regime will continue to haunt it until it’s corrected.  In other words, Kenya must un-ring Jubilee’s bell of illegitimacy. That’s only going to be possible if Jubilee submits to an inclusive broad process for a new national compact to conclusively address Kenya’s demons. Threats of treason or Armageddon won’t work.

Makau Mutua is SUNY Distinguished Professor at SUNY Buffalo Law School and Chair of KHRC.  @makaumutua