Uhuru still enjoys fruits of incumbency – AG Muigai says

President Uhuru Kenyatta still enjoys executive authority, including being Commander-in-Chief of the Armed Forces, Attorney-General Githu Muigai said Friday as he downplayed fears of a constitutional crisis.

The government’s chief legal adviser said President Kenyatta and his government will continue enjoying the powers bestowed upon his office until the swearing-in of a president elected on October 26.

President Kenyatta’s legitimacy cannot, therefore, be questioned and “any attempt to establish a government other than the way stated in the Constitution is unlawful”, he said. 

The Constitution only restricts President Kenyatta from carrying out some functions as stated in Article 134(2), which include nomination or appointment of judges, appointment or dismissal of cabinet secretaries or any other state or public officers and conferring the power of mercy or honours, Prof Muigai added.

National Super Alliance (Nasa) has described the status enjoyed by President Kenyatta as temporary incumbency as stated in Article 134 of the Constitution.

The Article refers to the period between the election date and the day the newly elected president is sworn-in and the powers he can exercise.

Kenyans head for the repeat presidential poll on October 26, after the August 8 election was nullified by the Supreme Court.

Even if the election is not held within the 60 days, Prof Muigai said the move does not make President Kenyatta’s government illegitimate.

“There is absolutely no chance of a constitutional crisis if the election does not take place within the set timelines,” he said.

He said the country is still within the election period, adding that the Constitution should be read ‘holistically’.

Legal experts have claimed that following the nullification of the presidential election, the country might be plunged into a crisis, if a repeat poll is not held within two months as per Article 140 of the constitution.

The experts said this will lead to an interim or a caretaker government.

But Prof Muigai said any Kenyan could go back to the Supreme Court and seek an interpretation on the matter.

“There is nothing like a transitional or interim government. Until the swearing-in of the newly-elected president, the government in office enjoys legitimacy. The legitimacy of the office is by full force,” he said.

But in response, Bungoma Senator Moses Wetang’ula, also Nasa co-principal said: “It is clear that the Attorney General is misreading the Constitution or he is being mischievous and dishonest.”

The senator pointed out that by November 1, if the election will not have been held, the country would have a caretaker President and in that case the Speaker of the National Assembly would act as the president for 90 days until an election is held.

“The Attorney-General cannot claim that President Kenyatta is a full time President, he is lame duck at the moment and everything will end if [the] election is not held within 60 days as was directed by the Supreme Court,” Mr Wetang’ula said at a Nasa news conference in Nairobi on Friday.

Orengo says court found the commission culpable and its offices “should be a crime scene.”

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