When Attorney General Prof Githu Muigai cautioned former Prime Minister, Hon. Raila Odinga, of grave consequences in the event of the consummation of his threatened swearing in as “the People’s President” he was heavily criticized by many.
Some viewed Prof. Muigai’s warning to be legally groundless, while others sought to provide justification for Odinga’s swearing in, locating it within the realm of freedom of expression which they argued was exercisable by whatever means so long as the act itself was not unlawful.
To his credit, the Attorney General was quite unequivocal that any swearing in of a person to the office of President of Kenya was to be founded upon, first, a declaration and certification by the IEBC that such a person met the required constitutional thresholds in a presidential election (and if necessary, the affirmation of such results by the supreme court) and, following which; the swearing in of the declared victor is to be conducted by the Chief Justice of Kenya.
Absent these two conditions, any swearing in would not constitute a presidential swearing in and therefore not capable of giving rise to any legal entitlement in favour of Hon. Odinga.
In making this rather plain assertion, the Attorney General was in my opinion relying on a well-known maxim of international law, ex injuria jus non oritur that, no legal right can derive from an illegal act.
The illegal acts in my view would be the flagrant usurpation of the constitutional role of the IEBC to conduct and declare the result of a presidential election as well as the role of the Chief Justice as the office upon which the solemn role of swearing in of the head of state and government of the republic inheres.
While the constitution recognizes 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 Hon. Odinga from the swearing in charade.
By way of analogy from other legal situations, it is possible that illegal acts if permitted can acquire legal force. In property law for instance, trespass upon private property is an illegality that is sanctioned by way of penal consequences or damages.
However, if such trespass is allowed to persist for a duration of time-in our law, 12 years without challenge, such trespass acquires legal legitimacy and confers upon the trespasser a title that is better in law than that of the beneficial owner.
This is the well known law of adverse possession. Moreover, military coups (including peaceful ones) are frowned upon by international law as proper means by which change of government is to be realized. However, if permitted to take effect and government founded on this illegality is installed, over time, and based on recognition by citizens of that state and the tacit acknowledgement of international community, legitimacy gradually flows to sanctify a regime founded on this illegal power grab.
Further, whereas governmental functions are generally not capable of being restrained by estoppel, if a swearing in of Mr Odinga were allowed without hindrance, it is possible that some of his zealous supporters could rely on such swearing in to pursue conduct that is incompatible with the law and seek the defense of estoppel when confronted by law enforcement agencies.
To foreclose the emergence of ex factis jus oritur (legal consequences arising from facts on the ground) situations, it remains imperative that firm action be taken against any swearing in outside of the law. For after all, as posited by Prof. John Austin, law is that command that is backed by coercive force.
Moreover, governance policy that seeks social order and clarity supports the prevention of the celebration of an unlawful act, by seeking to ensure that a fait accompli founded upon serious illegalities does not consolidate and crystalize over time into situations potentially supportable by the national or international legal order.
The function of non-recognition of an illegality therefore, is to vindicate the legal character of lawful conduct as against the “law creating effect of facts”. Thus, the Attorney General’s opinion is well founded in law and policy.
Though Hon. Odinga’s swearing in efforts can be viewed as an attempt to force dialogue on his much-vaunted electoral justice campaign, perhaps it’s better to be reminded that rage needs always to be tempered with acuity and militancy, while indispensable, needs constitutional methodology to remain viable.
(Dr Sing’Oei is an Advocate of the High Court of Kenya and a Legal Advisor, Executive office of the Deputy President)