Cloud of apprehension over Odinga defiance

News & Analysis

Cloud of apprehension over Odinga defiance

Raila Odinga, the leader of Kenya’s main opposition, the National Super Alliance (NASA), refused to back down from his threat to conduct an alternative ‘swearing-in’ ceremony in defiance of the constitution. Onim Arando looks back at a tense few months in the country as the issue drags on.

As we were going to press, a cloud of apprehension loomed over Kenya as Raila Odinga refused to back down from his pledge to conduct a presidential coronation and swearing-in, disregarding the fact that the country has a duly elected president from last year’s election.

This is completely unchartered waters for the country’s politicians, most of whom are desperately hoping to avoid the kind of civil violence that rocked the nation after the 2007/8 elections, when Odinga lost to Mwai Kibaki after disputing the results. It took Kenya almost a decade to claw back its international reputation and make good severe economic losses.

It is clear that the Kenyatta government does not want to arrest Odinga unless it has no other option as this would make ‘a martyr’ of him and could lead to civil strife. Given the harsh lessons of 2007/8, Kenya cannot afford another descent into violence. How the issue will play out has left the country’s population tense and worried. “We have had enough politics,” said one trader in Nairobi. “I wish these politicians would just dry up and blow away and let us get on with life and earning a living.”

But large segments of the country’s unemployed feel disenfranchised and support Odinga’s bid to gain power ‘through the back door’. How this circle can be squared is the question on everyone’s mind, including the country’s large expatriate and diplomatic community.

In a throw-back to 2007/8, there has been talk of a ‘unity’ government in which members of the opposition alliance would be given ministerial positions but as things stood when writing this article, the ruling Jubilee party appeared to reject the idea. Many scenarios are possible.

How did Kenya, the strongest economy in East Africa and considered one of the most mature democracies in Africa, get to this pass? Following a protracted election year in 2017, Odinga outright declined to accept the result of a repeat election held on 26 October, insisting he was validly elected on 8 August – in an election that was nullified by the country’s Supreme Court. Mid-January, the indefatigable politician insisted on a swearing-in (an illegal act in the country), saying he was ready to be sworn-in as the People’s President even if it meant doing so from exile.

He insisted that the opposition alliance would continue with defiance against the country’s leadership, a move that has included a boycott of products from some of the country’s leading corporate entities – Bidco, Safaricom Telecommunications and Brookside, a dairy firm associated with President Kenyatta’s family.

The illegality of the ‘swearing-in process’ and the defiance and disrespect of the constitution and institutions of governance in the country puts Odinga again at loggerheads with the country’s administration, something that has in the past seen former President Daniel arap Moi lock him up for nine years in the lead-up to the advent of the country’s multiparty democracy in 1992.

His advisers have insisted on going on with the event through the People’s Assembly, constituted by NASA to lead a nationwide civil disobedience campaign under the alliance’s National Resistance Movement, a wing that is tasked with organising demonstrations and protests across the country.

“My being sworn-in is a statement that an illegitimate government is in office and the legitimate government elected by the people is not in office,” Odinga said.

“We will work like a government and appoint ministers even if we have to run the government in exile,” Odinga explained.

A proponent of the ‘swearing-in’, Johnstone Muthama, a former Senator of Machakos County told New African: “We are determined to go on with it. This move is unstoppable. We shall not relent.”


Diplomatic push and shove

On the other hand, Odinga has blamed Western powers – mostly, the country’s development partners led by the US through their diplomatic mission in Nairobi – for slowing a process that could have culminated in the swearing in during the Independence Day celebrations on 12 December.

There have been rounds of diplomatic push and shove between the offices of Odinga and State House, Nairobi, in an effort to unlock the impasse that threatens to tear the country down the middle.

“They [the US] are our friends and they are free to advise us but we cannot be forced. We shall do what we want to do,” Odinga said. He has had meetings with foreign envoys since the swearing in of President Kenyatta on 28 November but no progress has been reported.

US Ambassador Robert Godec, who has been a leading player in calling for a political ceasefire between Odinga’s NASA and the ruling Jubilee Party, was on 9 January forced to come clean on reports that he was pushing for a unity government to calm political tension in the country.

“Media reports that Ambassador Bob Godec asked for a unity government are wrong. US continues to be committed to a National Conversation involving all Kenyans to build national unity, address long-standing issues and resolve divisions exacerbated by 2017 elections,” Godec’s office tweeted amid speculation that President Kenyatta’s partial naming of the Cabinet on 5 January was to provide room for opposition-allied politicians to be considered for ministerial posts.

Odinga maintains that NASA are not breaking any law in the country, insisting that their claim to election is based on figures mined from the Independent Electoral and Boundaries Commission (IEBC) website. 

The IEBC, the country’s election supervisor, has equally been on the receiving end of the NASA stick, in accusations of aiding the re-election of President Kenyatta for a final term.

“We’re not breaking the law. It is Jubilee who are breaking the law by setting up an illegitimate movement, which the Supreme Court tried to justify by upholding its election,” Odinga charged.

Asked about the possibility of chaos erupting as a result of his swearing in, Odinga said his supporters will maintain peace, urging security services to keep out of his inauguration event.

“The decision not to have chaos and killings lies with the government. Our supporters are peaceful people and they will converge for the inauguration at Uhuru Park peacefully,” he said, adding: “If they think my swearing is in breach of the Constitution, they are free to arrest me.

Odinga made the alternative swearing in decision just a day after a wing of NASA legislators formally recognised him as ‘President’, and Kalonzo Musyoka, his running mate last year, as the Deputy President. Musyoka served as former President Mwai Kibaki’s assistant after the disputed 2007 elections that pushed Kenya to the brink and was Odinga’s running mate for the presidency in the failed 2013 bid. Led by neophyte Kakamega Senator Cleophas Malala, the NASA leaders denounced Kenyatta’s administration as illegitimate, daring the state to arrest them.

“We recognise His Excellency, the Rt. Hon Raila Odinga as the bonafide President of the Republic of Kenya…”, the leaders said in a statement. “To this effect, each one of us has signed a legal instrument binding us to this resolution. We remain on course in our journey to have the truly elected leaders of our Republic sworn in,” it continued.


A case of treason?

The decision to ‘inaugurate’ Odinga has however been condemned by the government, with Attorney General Prof. Githu Muigai, the chief legal advisor describing the move as treasonous.

“Any attempts to swear in any person as president other than the one elected in line with the constitution and in a manner provided for in the law is unlawful, illegal, null and void ab initio,” the Attorney General told New African in an interview.

Thirdway Alliance Party has termed the plans treasonous and a violation of Article 3 (2) of the constitution. “Any attempt to establish a government otherwise than in compliance with this constitution is unlawful,” said party leader, Ekuru Aukot.

Aukot, who came in third in the 26 October presidential election, said he was going to play the role of an official opposition leader, citing Odinga’s failure to take up the role.

“While the constitution recognises the primacy of freedom of expression, this right cannot be used as a cloak for illegality. Consequently, aware that illegal acts that are permitted to fester over time can acquire legal force through a gradual process of waiver, prescription and acquiescence, it was therefore quite appropriate that the Attorney General dissuaded Odinga from the swearing in charade,” says Dr Korir Sing’Oei from the Office of the Deputy President, William Ruto.

Will the rule of law and the constitution prevail or will feelings of marginalisation and anger take over? Kenya, and East Africa remain tense. NA

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