Opposition chief Raila Odinga yesterday fanned apprehension over his 'inauguration', despite a grim warning from the state that he will be charged with treason if he takes a presidential oath.
The offence, if proved, is punishable by death.
And as the government goes all out to prevent another ugly street showdown with its security officers, the committee charged with organising the former Prime Minister's oath-taking has remained tight-lipped.
The swearing-in as the 'People's President' at the People's Assembly is to be on Tuesday.
The Star has learnt from sources close to Raila that the team has decided on a tentative venue and identified two judges willing to administer the oath. A presidential standard that Raila will fly once he is sworn in has also been prepared, they said.
The committee has put in place security arrangements in case the state tries to arrest members of the planning committee before or on Tuesday.
A team of well-known lawyers is on standby to represent anyone who is arrested and arraigned.
Security agencies have mounted 24-hour surveillance on Raila and his close allies.
Raila's planned inauguration was discussed on Wednesday by the National Security Advisory Committee, the top security agency, security sources have told the Star.
It was during that meeting that a decision was taken to have Attorney General Githu Muigai address a press conference yesterday on the illegality of the imminent swearing-in. President Uhuru Kenyatta was informed of the NSAC resolutions.
The government has told police and other security agencies to keenly monitor the movements of all leaders from counties that have passed the People's Assembly motions.
The governors include Anyang Nyong'o of Kisumu, Okoth Obado of Migori, Hassan Joho of Mombasa, Kilifi's Amason Kingi, Kitui's Charity Ngilu and Makueni's Kivutha Kibwana.
But a tough-talking Muigai, accompanied by government spokesman Eric Kiraithe, said the government will invoke Article 40 of the Penal Code to charge the ex-Premier should he attempt to take the oath.
“The criminal law of the Republic of Kenya in Article 40 of the Penal code stipulates that sort of process is high treason in respect of the persons involved and other persons facilitating the process,” Githu said.
“What is the punishment for high treason? It is is death...No person may claim or exercise state authority except as authorised by the Constitution.”
Muigai also warned that the offence and consequential death penalty, on conviction, would extend to Raila's close allies found to have facilitated the swearing-in.
But some Nasa-leaning lawyers swiftly dismissed Muigai's interpretation of the law.
Nelson Havi, who wants to be president of the Law Society of Kenya next year, faulted the government's chief legal adviser's opinion as "interpreting the law upside down like a bat", on his Twitter account.
Lawyer Donald Kipkorir said, "Treason laws were left in the 18th century and it is the DPP who interprets the law, not the Attorney General."
Lawyer Apollo Mboya said, "As a Commissioner for Oaths, I am ready and willing to administer oath pursuant to the Oaths and Statutory Declaration Act, Chapter 15 of the Laws of Kenya, to any person, including to Raila Odinga."
Yesterday, Raila was adamant he will be sworn in on Tuesday as Kenya marks 54 years of internal self-rule.
On Wednesday NASA wrote to 11 governors requesting a venue for Raila's swearing-in, causing anxiety in government circles.
“Your county having passed the People’s Assembly motion, the presidential inauguration team is requesting your office to provide a venue for this high-level event in your county,” the letters say.
It"s not clear whether sending many letters is a strategy to confuse the government on the venue.
Thirteen county assemblies have passed the motion establishing the People's Assembly and saying they do not recognise Uhuru Kenyatta as the duly elected head of state.
Kiraithe called Raila's swearing-in “banditry politics” and urged Kenyans not to panic about their security on the day.
NASA strategist David Ndii was on Sunday arrested in what was seen as a crackdown on the team spearheading the inauguration. He was released a day later without charge amid wide condemnation.
Others committee members are Judy Sijeny, Hamida Kibwana, Mutakha Kangu, Oduor Ong’wen, Koitamet ole Kina and Peter Mathuki.
Raila spoke yesterday at the Lee Funeral Home where he was accompanied by the NASA team and families to received bodies of those killed in recent demonstrations.
“We do not recognise the October 26 repeat presidential election. We do not and will not recognise the swearing into office as a result of the so-called election of October 26. We go by the elections of August 8 when Kenyans expressed their will to vote,” Raila said.
NASA has been citing Article 1 (2) of the Constitution which allows people to express their power directly, to justify their action. It states, "The people may exercise their sovereign power either directly or through their democratically elected representatives."
However, the AG said the law allows Kenyans to directly exercise their authority only during voting in an election or referendum.
A visibly angry Raila also blasted the international community for urging him to call off his swearing-in plan.
“They even have the audacity to come and advise us to forget and move on. I will not be intimidated. Kenyan problems will be solved by the Kenyan people,” Raila said.
He spoke while seeing off the bodies of 16 people, including seven-year-old Geoffrey Mutinda, all said to have been killed by the police. Police deny those figures.
Raila's fury comes after US Assistant Secretary of State for Africa Donald Yamamoto asked the NASA leadership to call off the inauguration and seek dialogue within the confines of the law.
“Our friends can give us advice, in private, but don't come and shout at us and tell us that we are going to violate the Constitution, Constitution, my foot! We will move and do what is right for the people of Kenya,” Raila stated.
Signaling NASA's deteriorating relationship with Western diplomats, Raila said the international community, through their ambassadors, has “declined” to condemn killings witnessed in the country since the voided August 8 poll.
Raila said that since August 8, 215 people have been killed but the international community has remained silent.
The opposition appears to have lost confidence in US ambassador Robert Godec whom they accuse of bias and mis-advising Washington on the Kenyan crisis and the impact of the protracted standoff.
“It seems we are living in a different world. As Kenyans, we are on our own. Those who call themselves friends of Kenya are indeed enemies of Kenyans,” he said.
“This country will be built and changes will be made by Kenyans themselves but not foreigners. I urge Kenyans to stand strong and move ahead with their daily businesses.”
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