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March 22, 2018

Secession and boycotts, so much baloney

NASA Leaders meeting IEBC commissioners at Capital Hill office. / DENNIS KAVISU
NASA Leaders meeting IEBC commissioners at Capital Hill office. / DENNIS KAVISU

NASA have extended their disingenuous political and forensic mischief to frontiers that we must all now agree are untenable and unacceptable.

Two instances of this absurdity will suffice to bear me out.

Somehow, NASA has managed to locate persons claiming to act as lawyers who have proceeded to produce truly alarming interpretations of the Constitution.

An entire brigade of NASA lawyers now asserts the position that it is feasible to constitutionally secede from the Republic of Kenya. From a political and legal standpoint, this is utter nonsense. Even without expounding Article 3, a recapitulation of the first principles of constitution making exposes the fatal defects of the secession narrative.

A constitution constitutes its referent entity. The Constitution of Kenya sets out the principles and institutions that make up the Republic of Kenya. Any exercise intended to de-constitute Kenya, therefore, violates the essence of the Constitution, because the Constitution forbids it, and also because Kenya ceases to exist in terms of its Constitution. By the operation of basic logic, therefore, the Constitution of Kenya cannot permit the de-constitution of Kenya. Any argument to the contrary is tragically misdirected.

Secondly, NASA ‘lawyers’ seem to work themselves into the position where they imagine that preventing the election in parts of the country will invalidate the polls. All that the IEBC is required to do is ensure that it mobilizes appropriately and provides the opportunity for electors to exercise their choice, including the right to abstain. It is the essence of political freedom. Thirdly, one cannot prevent people from voting or disrupt the IEBC’s mobilization without running afoul of a gamut of electoral sanctions.

Finally, there is the practicality of it. I refer to Article 138(4): For a candidate to be declared duly elected, (s)he must receive more than half of all the votes cast in the election, and at least 25 percent of the votes cast in each of more than half of the counties. We have 47 counties. Uhuru needs to get more than half of the votes cast, which should be more than easy to achieve if there is no competition. Secondly, with the current lay of the land, Jubilee easily commands nearly 30 counties at the moment. Thus, NASA are not only incapable of stopping the election in even 10 counties. Even if they did, Article 138(4) has protected us from the sort of destructive blackmail NASA contemplates.

The writer works fr the Presidency

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