NAIROBI, Kenya, Sep 22 – Attorney General Githu Muigai has dismissed claims by the Opposition that a caretaker government should be formed until another president is duly sworn-in, if the country fails to hold a fresh presidential election by November 1.
Addressing a news conference on Friday morning, Muigai said Uhuru Kenyatta’s presidency will remain valid until such a time an election is held and a new President elected.
“There’s no doubt as to what the Constitution provides: From the day a General Election is declared to the day a fresh, a new or a re-elected President is sworn-in, the government continues without lacuna and without any void,” he stressed.
The AG, who was reacting to statements by the National Super Alliance (NASA) that Kenyatta is a caretaker President and that his incumbency could come to an end if fresh elections are not held within 60 days following the annulment of his re-election, said the Head of State is only limited to making fresh appointments as stipulated in Article 134 of the Constitution.
“The Constitution is read holistically so that to give it purpose and meaning. Even in the very unlikely event that for whatever reasons the election wasn’t held on the sixtieth day; that does not de-legitimise the constitutional order of the day,” the AG said.
“The President of the Republic of Kenya continues to enjoy full Executive authority including powers bestowed on him as the Commander-in-Chief of the Kenya Defence Forces.”
On Thursday, the Independent Electoral and Boundaries Commission (IEBC) set October 26 as new date for a re-match between Jubilee Party’s Kenyatta and NASA presidential candidate Raila Odinga, vacating the earlier announced October 17 date.
With the clock ticking on the 60-day timeline since the annulment of Kenyatta’s win in the August 8 presidential election on September 1, the IEBC has already gazetted critical election timelines as it readies for the fresh poll.
The chief government legal advisor also ventilated into the debate on the implications an Odinga boycott of the fresh election would have – if any – saying the election would still remain valid with or without the participation of any candidate – Odinga included.
“An election is an opportunity for individuals to offer themselves to the electorate. No election has ever been invalidated on the basis of where was the other party on Election Day,” Muigai said during the press conference at his State Law Office.
He also ruled out the possibility of the formation of a transitional government precipitated by a potential “constitutional crisis” saying the legitimacy of the government of the day is preserved in law.
On the prosecution of IEBC officers accused by the Opposition of having bungled the August presidential election, Muigai said there may be a need for the Director of Public Prosecutions to institute an independent probe.
“My understanding is that the Supreme Court said no evidence was presented to it from which it could adduce that any individual acted in a criminal fashion,” he explained.
In its detailed verdict of the annulment of last month’s presidential election, the Supreme Court explicitly explained that it had not found any wrongdoing on the part of any IEBC official.
“No evidence was placed before us to prove that electoral offences were committed by officials of IEBC. What we saw in evidence was a systematic institutional problem and we were unable to find specific fingerprints of individuals who may have played a role in the commission of irregularities,” Chief Justice David Maraga ruled.
“We are therefore unable to impute any criminal intent or culpability on either the IEBC Chairman or any other Commissioner or member of IEBC,” he held.
In the judgment, CJ Maraga, his deputy Philomena Mwilu and Justices Isaac Lenaola and Smokin Wanjala (in absentia) nullified Kenyatta’s win in a majority ruling with Justice Prof Jackton Ojwang’ and Lady Justice Njoki Ndung’u dissenting.