A scrutiny with election law expert Steve Ogolla on Roggkenya.org
Q: Just a day before the repeat Kenya’s Presidential Election, the opposition, the NASA coalition, has declared to transform itself into a “resistance movement.” And promptly, during election day we have seen NASA supporters set up illegal blocks on highways under that name of a legitimate resistance movement. So, is a resistance movement some kind of a warlord army that operates outside of the law?
A: The fact that NASA is using the phrase “national resistance movement” does not necessarily make it a military or violent movement, because Article 3 of the Constitution requires each and every citizen to defend the Constitution. Yes, they may call themselves the constitutional defense forum or national resistance movement. I would not read so much in the name. It is the kind of name that is envisioned in the Constitution without necessarily causing anxiety in the country.
Q: But is there a case now that requires a resistance to defend the Constitution by extrajudicial means according to Article 3?
A: No, that’s not what I am saying. That provision is embedded in the Constitution. So, the presumption is that the manner in which we defend the Constitution is within the limits of the Constitution itself. To do it in an unconstitutional way would be a subversion of the Constitution, not a defense of it. The Constitution gives us a clear pathway of the manner in which you can defend it.
Q: Which is?
A few examples:
1) Voting for your President is the first step of defending the Constitution because it says the President can only be elected at the ballot;
2) Seeking impeachment of a President for gross misconduct or abuse of office is also a way defending the Constitution;
3) Seeking judicial enforcement of the right to public participation in legislative or key decision making processes;
4) Challenging the conduct and outcome of the Fresh Presidential Election; and
5) Exercising the right to picket under Article 37 – Freedom of Assembly and Association. It is the right of Kenyans to go out there and peacefully assemble and demonstrate as long as they do not disrupt the order of government or interfere with other people’s rights to be able to move on with their business.
All these are opportunities within the Constitution which NASA can activate to defend the Constitution. So within the limited view of the Constitution, the “National Resistance Movement” can only mean: If NASA believes the elections were not free and fair the way to resist that is to file an Election Petition; to continue picketing peacefully until the government accepts a political dialogue; or to initiate impeachment of the President.
Q: None of this is mentioned in the declaration that opposition leader Raila Odinga has read out on October 25th during the NASA rally at Uhuru Park. He said that “by attempting to establish an unlawful government, Uhuru and Ruto (the President and Deputy President) have invited us to exercise our sovereign power directly as enshrined in the very first Article of our Constitution.”
A: That statement is problematic and may lead to unconstitutional actions. The Fresh Election to be conducted on October 26, is not illegal. The election is a consequence of the law. The Constitution under Article 140 (3) requires Fresh Election to be conducted within 60 days. There is no court order stopping or vacating the election.
I do not think it is open to any political actor to claim that the election is illegal. What you may claim is, that the process is fraudulent. But that only gives you an opportunity to go to court and present evidence. If the court agrees, the election will be nullified as it happened on September 1, 2017, when the Supreme Court nullified the Presidential Election of August 8.
Q: What could it in light of the Constitution mean if NASA or NRM demands to exercise “our sovereign power directly”, as they put it?
A: I hope NASA did not mean something outside of the Constitution. Within the framework of the Constitution, how the people can exercise their right of sovereignty, is by going out and voting directly for their president- at the ballot. The second way of direct involvement is through what is called public participation, that the government should not make decisions without consulting the people. The third example is through impeachment, as mentioned. A fourth way is to picket to force a political dialogue.
Q: And outside of the Constitution?
A: Citizens arming themselves or going to war, that is not meant by an exercise of “sovereign power” within the Constitution. If NASA means to violently fight the government, then this is unlawful and outside of the Constitution. That act would allow key organs of the state to begin what lawyers call “reestablishing the Constitution.” The government would be allowed to use the kind of force that is necessary to repel those who want to destabilize it.
Q: Raila Odinga also said, “the movement will embark on a national campaign of defiance of illegitimate governmental authority.”
A: It is difficult to assess the legitimacy of a government through partisan lenses. It is both a question of law and politics. You cannot deem a government that has been elected at the ballot, to be an illegitimate government. The question of political legitimacy can, however, arise because a huge section of our country has not voted at all. Now, the way to deal with the question of political legitimacy is, first of all, to try and see if the process that led to that election was compliant with the Constitution. If it was not, the Supreme Court can annul the election. The other way is to carefully, and I emphasize “carefully”, within the law, picket from day to day in all Central Business Districts in the Republic and sit-in there for one, or two hours. That can create a sense of political instability that can then force the government to negotiate with the opposition.
Q: But NASA or NRM said they want to defy the government and they want non-cooperation with all government organs …
A: This to me sounds like an attack on key organs of the government. You cannot state that people should not cooperate with the government unless it is specified. That would be an illegal statement. Because cooperation means you obey the law. If you do not obey the law then you are not in a “Rule of Law” country. I hope they will explain to their supporters what non-cooperation means. It cannot mean, for instance, not to pay taxes or not to obey law and order, and it cannot mean carrying arms resisting authority because all that is illegal. They must define in a very narrow way what non-cooperation means. What it could constitutionally mean is to, by way of example, boycott public participation whenever called upon. They may choose not to give their views that could improve the technique of governance.
Q: And the call for a boycott of companies, which government politicians profit from?
A: Now that is perfectly legal. It is the decision of every citizen to choose whom to buy goods and services from.
Q: And the People’s Assembly they want to convene? Sounds like a competing parliament or an assembly to write a new Constitution.
A: No problem with that. No government can restrict the ability of the people to assemble and discuss and talk.
Q: The “Resistance Movement” calls to mobilize “all progressive forces” for another presidential election within 90 days.
A: I can only reiterate the legal aspects: If the newly elected government lacks political legitimacy because a critical section of the population did not vote, then the people who share that view have a right to demand a government that is elected by everyone. The demand itself is not unconstitutional. But to set a timeline of 90 days is unconstitutional because every such timeline must be anchored in the constitution. There is no such provision. The next election date is in five years if the outcome of the present election is not successfully challenged in court.
However, the President may decide, by himself or upon such advice, that he is willing to serve a shorter term, in order to accommodate the political agitation for repeat elections.
(Photo: Violent Interruption of IEBC training in Kisumu, Oct 18, 2017 – picture by Simon Achola)