We can avoid Armageddon if we follow the Constitution

Kenya would be a nation of fools if we believed a word out of Attorney General Githu Muigai’s mouth. Last week, he asserted matter-of-factly that Jubilee’s Uhuru Kenyatta enjoys “full powers” of incumbency after the nullification of the presidential poll by the Supreme Court.

I wouldn’t take Muigai’s legal interpretation to the bank if I was Jubilee. In colloquial lexicon, AG Muigai’s interpretation of the Constitution – and the country’s laws – has generally been a big nothingburger. It’s not that Muigai is legally illiterate. No – rather, he’s chosen to give the state “politically convenient” legal advice whenever the executive wants to subvert the constitutional order. Muigai is a political gatekeeper in the guise of a lawyer.

I don’t want to go into the times without number that Muigai has forcefully swung the bat and whiffed. Two painful examples come to mind. A pitiable example was the law – nullified by the courts – giving Mr Kenyatta the power to appoint a Chief Justice of his choice. The law would’ve negated the Judicial Service Commission (JSC) and turned it into a slave of the executive.

The second was the sorry challenge – which the courts rejected – declaring elections results at the constituency final. I won’t even mention Muigai’s ignoble role in the state’s scorched-earth war against the ICC. The title of AG invests Muigai with the task of the chief government’s lawyer. It’s a job for which he scores D.

That’s why Muigai has no credibility to issue a believable legal opinion on Kenyatta’s power in the interregnum – the dead period between one election and another. We have to look to sober and objective minds for sound advice.

This is extremely critical because any confusion – whether deliberate or intentional – could brew an irreversible constitutional crisis. I am sure no one in NASA or Jubilee wishes to see an existential crisis of the Kenyan state simply because they can’t agree on the date and terms for the fresh election. The stakes are simply too high and the cost of a decapitated state too unthinkable to entertain. That’s why loose talk is not in Wanjiku’s best interests.

Let me tell you – definitively – what the Constitution says on this matter. The period in question is the interregnum, or that grey void between elections. This question has acquired monumental significance because Kenyatta and Jubilee have been saber-rattling. They want to “fix” the Judiciary for nullifying the rigged election.

They want to neuter the IEBC. In plain language, they want to install a dictatorship in Kenya. What’s alarming is that Jubilee seeks to castrate independent institutions even before the fresh election is held. Jubilee believes this will allow them act with impunity and return themselves to power come hell or high water. The law and the Constitution be damned. This is the textbook path of failed states.

We can avoid Armageddon if we follow the Constitution. First, Section 135 of the Constitution completely – and without ambiguity – removes all doubt about the powers that Kenyatta enjoys during the interregnum. He does not – as Muigai wrongly asserts – have “full powers.”

Kenyatta is invested with sharply reduced powers during this period of “temporary incumbency.” He can’t appoint judges, diplomats, Cabinet Secretaries, or dismiss senior officials, or confer national honours, or exercise the pardon power. In essence Kenyatta is a caretaker head of state during the interregnum. He lacks the mandate of the people. He’s only left with residual powers to perform the absolutely necessary functions of a head of state to avoid a power vacuum.

My construction of Section 135 is that Kenyatta doesn’t have the power during the interregnum to sign laws that could alter the democratic character of the state. Kenyatta can’t sign into law the draconian changes to the Supreme Court Act and the nation’s elections laws in his reduced capacity. A lame duck president doesn’t hold such powers. The Constitution is silent on this issue, but the framers couldn’t have intended to give critical powers to a person without the people’s mandate. I am confident the Supreme Court would strike down such executive and legislative overreach were it to become reality. The fundamental character of our democracy can’t be voided by a “temporary incumbent.”

The bigger question is what happens if the fresh election doesn’t take place within the constitutionally allotted 60 days? Again, here the Constitution is silent because the framers were either incompetent, or inattentive. 

This is a constitutional void, or lacunae. But since the Constitution as a democratic charter doesn’t contemplate a dictator or an intentional void, we must construe it within its full legal framework. Thus Kenyatta continues to be a caretaker until a president is democratically elected within the next 30 days after November 1 at the latest.

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