Attorney General Githu Muigai on Friday said President Uhuru Kenyatta will remain legitimately in office with full executive powers until results of the October 26 rerun are announced.
Addressing a press conference at his Sheria House office, the AG dismissed claims the country is plunging towards a constitutional crisis that can only be resolved through a transitional government.
The AG said from the day an election is declared to the day a new President is sworn in, the incumbent head of state continues to enjoy executive authority without any lacuna or void.
The presidency, Githu said, can only be renewed by a new election and the legitimacy of the government cannot be questioned, because it is preserved by the Constitution.
He said the ‘transitional’ and ‘caretaker’ government references that are being discussed have no room in the law as Uhuru continues to enjoy full executive authority. These include the powers conferred on him as the Commander-in-Chief of the Armed Forces.
The AG cited Article 3 of the Constitution, which states, “Any attempt to establish a government otherwise than in compliance with this Constitution is unlawful.”
Githu referred to media reports attributed to several individuals regarding the status of government between the declaration of a general election and the swearing-in of a new President. “In some of the reports it has been suggested that where the election of the President is challenged and a subsequent election is held, a time may come in which the mandate of the presidency may be deemed to have ended and that some other form of arrangement or government may be considered. I wish to state there is no room for the creation of any other form of government or authority,” he said.
Githu said the Constitution only recognises a few acts that the incumbent President is not allowed to carry out, spelled out under Article 134.
The President is not allowed to nominate or appoint judges of the superior courts, nominate or appoint or dismiss Cabinet Secretaries and other state or public officers. He also cannot exercise the power of mercy and lacks the authority to confer honours.
The AG said the legitimacy of Parliament cannot be affected by a subsequent event.
He said in the very unlikely event the election fails to be held within 60 days, it will still not delegitimise the constitutional holder of the day.
“There is absolutely no chance of a crisis around the date, because the election did take place. We are inside an election cycle,” Githu said.
The Supreme Court on September 1 invalidated President Uhuru Kenyatta’s victory on August 8, saying the process contained “enormous irregularities and illegalities”.
It ordered the IEBC to hold a presidential rerun within 60 days.
Four judges ruled in favour of NASA’s petition challenging the results, while two — Njoki Ndung’u and Jackton Ojwang — ruled against.
“The presidential election was not conducted in accordance to the Constitution. The results are null and void,” CJ David Maraga ruled.
Maraga said the IEBC failed, neglected or refused to conduct election in keeping with laws.
“We were satisfied the election was not conducted as the constitution dictates,” he said.
The IEBC scheduled the poll for October 17, but pushed the date to October 26. This was after the opposition demanded a raft of reforms by the IEBC.
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