Why Raila's swearing-in violates the Constitution

NASA supporters at Uhuru Park during Raila Odinga's swearing-in in Nairobi, January 30, 2018. /Enos Teche
NASA supporters at Uhuru Park during Raila Odinga's swearing-in in Nairobi, January 30, 2018. /Enos Teche

NASA leader Raila Odinga swearing-in at Uhuru Park has violated various aspects of the Constitution despite the opposition leader proclaiming that it is in accordance with the law.

"We assure everyone else that everything will be in accordance with the law," Raila told KTN News during their lunch hour bulletin.

However, the swearing-in of Raila violates various sections of the Constitution that opposition says it is following.

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Other than the swearing-in not happening by the stipulated 2 pm, the Chief Justice who must be present is not among those at Uhuru Park.

Article 141 of the Constitution that was promulgated in 2010 stipulates how a President assumes office in Kenya.

The Constitution says that the swearing in of the President-elect shall be in public before the Chief Justice, or, in the absence of the Chief Justice, the Deputy Chief Justice.

It adds in section 2 that the President-elect shall be sworn in on the first Tuesday following - "(a) the fourteenth day after the date of the declaration of the result of the presidential election if no petition has been filed under Article 140."

In case there is a presidential petition, the president-elect is sworn in on the

seventh day following the date on which the court renders a decision declaring the election to be valid.

"The President-elect assumes office by taking and subscribing the oath or affirmation of allegiance, and the oath or affirmation for the execution of the functions of office, as prescribed in the Third Schedule," Article 141(3) states.

The said Article also requires that Parliament passed legislation providing for the procedure and ceremony for the swearing-in of a President-elect.

This law is the Assumption of the Office of President Act, 2012.

Section 12 of the Act says that the swearing in of the President-elect shall be conducted in a public ceremony held in the capital city.

Section 12(3) says that the

day on which the President-elect is sworn in shall be a public holiday.

Section 13 says that the President-elect shall, during the swearing-in ceremony, take and subscribe the oath or affirmation of allegiance and the oath or affirmation for the execution of the functions of

office.

The oath or affirmation is to be administered to the President-elect by the Chief Registrar before the Chief Justice, or, in the absence of the Chief Justice, the Deputy Chief Justice, not earlier than 10.00 am and not later than 2.00 pm.

The President is to also sign a certificate of the inauguration in the presence of the Chief Justice or in the absence of the Chief Justice, the Deputy Chief Justice.

"Upon signing the certificate of an inauguration, the outgoing President shall hand over to the President the following instruments of power and authority —

(a)

a sword; and

(b)

the Constitution," Section 14 says.

This provision, however, does not apply where the incumbent is re-elected into office.

Section 16 requires that the President shall, upon the swearing in of the Deputy President-elect, give an inauguration speech to the nation.

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