{UAH} Dressing the Emperor: Raila’s oath enigma and what it means
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Dressing the Emperor: Raila's oath enigma and what it means
Having lived in exile in Scandinavia, Raila Odinga might have become familiar with the famous story of Hans Christian Andersen entitled Kejserens nye Klaeder or The Emperor's New Clothes.
This is a much-loved story that has powerful lessons and istold in many versions.
It so happened that two weavers approached the emperor of a certain country with the promise that they would give him beautiful new clothes invisible only to those "unfit for their positions, stupid or incompetent." The emperor agreed and so the duo mimed their way around him, 'dressing' him with new 'clothes'. When they were done, the emperor glibly paraded his new 'clothes' before the people and immediately, everyone could see that he was naked but would not dare say it. They were so scared of saying anything for fear of being thought to be "unfit for their positions, stupid or incompetent."
The emperor continued to parade his nudity until from the mouth of a babe came the truth. Unable to understand the need to keep up appearances or political correctness, a child in the crowd blurted out that the emperor was naked! And then the adults began to agree with the kid, saying that the emperor was indeed naked. However, like the good politician the emperor was, he never flinched an inch even though by now he too had realised that he had been duped by the weavers.
RAILA'S NEW CLOTHES
The disappointment over the failure of Raila to take the oath of office on Jamhuri Day was quite evident in some NASA circles. Some opined on social media and in some sections of the Press that Raila had failed them yet again. Others chose to keep quiet because they would not dare ridicule Baba in public perhaps scared of being thought "unfit for their positions, stupid or incompetent."
From sources here and there, it is clear NASA was deeply divided over the move to have the ceremony take place. Already, Attorney General Githu Muigai has termed such a move as 'high treason', and Raila was quick to rubbish the warning. He has since vowed to take the oath at an appropriate day in the coming year, a year that seems to portend another season of high drama for Kenyans.
NASA'S TWO WEAVERS
But could it be that some NASA insiders are working towards the downfall of Baba?
Have they convinced him to take the oath of office, fully knowing that they are weaving empty 'robes' for the king? There are some hard questions that are yet to be answered by NASA over the swearing-in of Raila. Who is really pushing in for the swearing-in? What, exactly, is the aim of the swearing-in and how will it benefit Kenyans in general, or the NASA fraternity in particular? What is its legal basis and what is the likely reaction from the government? These are the questions that those pushing for the swearing-in must answer. However, were the emperor to proceed and step out into the crowd, let's look at how naked he is.
PEELING BACK THE MASK AGAIN
Indeed, one of those championing Raila taking the oath of office on Tuesday's national holiday was Miguna Miguna, Raila's friend-turned-foe-turned-friend. He once gave us a tell-all book in 2012 about the inner workings and personal failings of Raila. His disappointment at Raila's failure to take the oath on December 12 was evident in a tweet that he posted afterwards. A friend cynically asked me to expect a new book – 'Peeling the Mask Again', predicting an imminent fallout between the two. If Miguna is one of the weavers dressing the emperor, then his counterpart would have to be Siaya Senator James Orengo.
The two eminent legal minds publicly promised us the swearing in of the former Prime Minister. While we can't immediately tell the real reason why the swearing-in did not take place, one really wonders where NASA is going with this.
THE ROAD TO NOWHERE
The issue of swearing-in Raila as the 'People's President' has become a matter of not just political but also of legal interest. Other than the AG terming it 'high treason', Jubilee leaders have pushed the treason ball and are threatening that Raila will be immediately arrested and charged in court and, if found guilty, hanged. High treason is different from petty treason, the former meaning treason against the sovereign and which in our case is the President (Uhuru Kenyatta). But Raila has dared the government to arrest him and charge him with treason, saying he is ready to die for fair polls. He has faced similar charges before. The last time, however, the then Attorney General would enter a 'nolle prosequi' that saved him from the path to Death Row.
THE POLITICS OF THE LAW
The decision to enter the 'nolle prosequi', in the case where Raila was charged with treason for his part in organising the failed 1982 coup, was probably motivated more by politics rather than by points of law.
Confessions by some of the coup-makers really produced enough evidence to send Raila to the gallows as a co-conspirator, or, better still, as the mastermind. All accounts show that a conviction would have been achieved by the evidence the State already had in its hands. However, Raila would be off the hook because other considerations came into the picture. Then, as now, the law can be influenced by political convenience rather than the purity of evidence. When Tanzania gave up the coup leaders, the then Attorney General did not feel compelled to enter a similar 'nolle prosequi' for them. Reason? The individuals were totally expendable and not blue-blooded like Raila was.
SAITOTI'S NOLLE PROSEQUI
Once, in 1996, Raila saw a 'nolle prosequi' entered in a case that he had brought against Vice President George Saitoti over the Goldenberg Scandal. AG Amos Wako (now a NASA politician), terminated the case in which Raila had sued the Vice President through lawyer Otieno Kajwang'. A furious Raila tried to challenge the 'nolle prosequi' in court but the judges dismissed his case. I dare say that it was on the back of such experiences that the drafters of the 2010 Constitution expressly removed the powers of 'nolle prosequi' from the Attorney General. And so, if indeed Raila were to be charged with treason, the extra-judicial considerations of 1982 would not come into play.
TAKING OATH IN 2008
This is not the first time that Raila has contemplated taking the oath of office, despite not being declared the winner of the election. In the 2007 General Election, it was clear to the casual eye that Raila Odinga had won and his victory had been snatched from him by his rival Mwai Kibaki. Raila had an obvious majority in Parliament and his party had seats all around the country. He had surpassed all the constitutional thresholds, only that the Electoral Commission of Kenya declared the wrong man the winner, and Kibaki got sworn in in the darkness. During one of the stormy ODM meetings in the run-up to the opening of Parliament, it was suggested that Raila should take the oath of office of President arguing, that Mwai Kibaki would not legitimately hold on to office without a parliamentary majority and his Cabinet would not run government effectively in an ODM-controlled legislature. It appears that Raila's indecisiveness got the better of him and he lost the chance.
According to Miguna's book Peeling Back the Mask, MP Omingo Magara said, "ODM MPs should swear in their own President, so that we go to Parliament with our Speaker, Deputy Speaker and President, and if there is chaos, that might be the beginning of a solution." However, this position was abandoned. Coming to the present day, NASA is nowhere close to the advantages the ODM had in 2008. They had a good Majority in Parliament and today Jubilee holds that. They had the international community on their side, now they don't. In fact, this time round, the international community is strongly against them. In the end, Raila chose to become Prime Minister in 2008, a position which, with hindsight, was a monumental mistake. He fell under the curse of incumbency, which contributed to his loss in 2013.
BRUSHING OUT THE ENVOYS
If indeed ODM had gone through with the parallel swearing-in of Raila in 2008, then they would have triggered the situation that happened in The Gambia, whose presidential election winner Adama Barrow was sworn into office in another country and loser incumbent Yaya Jammeh chased out of town by regional forces. Today, however, the international community generally thinks Kenya's election was really not that bad.
Places like the DR Congo are descending into deep chaos because of a President who will not leave office, and a restless population that is determined that he should go. Crises in the South Sudan, the Central African Republic and Burundi paint a grim picture of Africa's political stability.
Africa is full of recalcitrant leaders unwilling to subject themselves to constitutional order. Our next-door neighbour Yoweri Museveni was recently embroiled in a legislative tussle to extend his rule. Kenya is not quite in the same league as these nations.
While the electoral process is far from perfect, the basic elements of a 'free and fair' election could be observed, whatever your political persuasion is. The envoys, who are the mouthpiece of the international community, have asked Raila to accept talks with Uhuru and agree on reforms. Raila and NASA have heavily criticised the envoys, asking them to keep off Kenya's internal affairs. But the envoys also have the power to shrink the space for Raila and other NASA principals. For someone such as Raila, who frequents European and American capitals, the outcome could be unpleasant for him.
DRESSING THE EMPEROR
If indeed the NASA fraternity goes ahead and swears in Raila, at a future date, then they will be pushing adversarial politics that really have no other outcome but violence and deaths. Will he be the commander-in-chief of some army? Will he be able to run a police force and hold state powers? Will he name a Cabinet and how will he run his 'government'? Who will recognise that government and how will the international community take it.
Other than lacking a legal or constitutional basis, methinks the move has the value of diminishing the international stature of Raila Odinga as an eminent African statesman.
Finally, any swearing-in would jeopardize dialogue with the Government and prejudice the intended reforms that we all could do with. Many are now agreeing that he is running around in his birthday suit. It appears, however, that while Raila is fully aware of this, he is determined to sacrifice his dignity at the altar of political convenience.
Who will give him some clothes?
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