Handing over Ritual is Not a constitutional requirement

The constitution of Kenya 2010 is an interesting document and has been dubbed in some quarters as one of the best and most progressive in the world. It’s the manner in which it deals with possible legal stand offs that’s most admirable. A supreme law should be precise and straight forward in its letter and strongly implicit in its spirit. Ours appears to be such despite some discomfort in some of us. But it is the zeal with which the Judiciary has stood in defence of the Constitution that is most admirable. Of course this is not to downplay the role played by the lawyers who argue in favour proper application of the law; I suppose the advocates form a core part of the legal fraternity by extension are part of the Judiciary.

As it stands, if elections are held today, William Ruto stands the highest chance of winning and if things don’t change significantly— and I suspect they won’t— we are headed for a William Ruto presidency. I say a Ruto presidency because I do not expect anything to stand in his way if he wins. Our law envisages a smooth transition from one administration to another whether or not any player in our politics is okay with such transition. The main part of the transition is the swearing in in the presence of the Chief Justice or her deputy in the absence thereof.  Our law is in the mould of the  American one.

For some time now, there has been, albeit silently, talk of a possible refusal by an incumbent to hand over power to a president elect for whatever God forsaken reason that may be. Those who think, suggest or even imagine this can happen are still stuck in the sadly very African perception of power. The way our law is set is such that it has to be changed for anyone to hold power beyond the election and swearing in of another president. Power is given by the people through an election and lost through the same means. You cease to hold it the moment another person is elected and sworn in. 

One may argue that the swearing it may be prevented but even this is not possible. The only way you can stop a swearing in in to stop the Chief Justice from carrying out his responsibility of swearing in the new president. The CJ being a holder of an independent office can not be ordered not to carry out her constitutional responsibility of swearing in the president elect. It’s a process that’s guided by law and no one can chose which part of the law to obey and which one not to. Every other ritual outside of what the law provides is simply a ritual that is inconsequential to the process. Understand the Kenyan law, power is assumed by the new president. He needs no hand over to assume it just like in America.

Such talk is cheap. It’s thoughtless. It’s dangerous and foolhardy. It is a serpentine and disturbing flirtation with trouble and entertaining such thoughts is being completely oblivious to the fact that we are only one stupid act away from anarchy. If we didn’t learn from Rwandan genocide in 1994 we should have learned from 2007 post election violence. If there be anyone among us who has not learnt from those two unfortunate events, she must never be allowed to drop us into chaos. Civility is being able to dislike someone but still defend his rights. Democracy is voting one person, party or group but accepting and defending the right of another to lead once they win. We have peace today. Let us guard it jealously. Let those who have wisdom understand.