“The will of the people cannot be stopped,” said Raila Odinga, according to local media reports, responding to criticism of the opposition’s planned inauguration.
A five-page statement from Githu Muigai, Kenya’s attorney general, had described any swearing-in by NASA as unconstitutional and illegal. It also labelled NASA’s People’s Assembly as having “no legal basis” in Kenyan law.
The planned inauguration on 12 December is “neither treason nor is it illegal”, Anyang Nyong’o, Kisumu county governor, told RFI.
“If there’s anything illegal it’s Uhuru Kenyatta pretending to be president without the majority of Kenyans voting for him,” said the governor, who is a member of the opposition NASA party.
The opposition rejects President Uhuru Kenyatta’s re-election following months of uncertainty after a nullified August poll and re-run in October.
Kenya’s attorney general had earlier said that any attempt to carry out such a swearing-in would be considered “high treason”.
However, Nyong’o dismissed suggestions that Odinga’s swearing-in could lead to his arrest, saying, “the people of Kenya will free him because you can’t arrest a legitimate leader by an illegitimate president”.
The US Embassy in Kenya on Wednesday urged the opposition not to proceed with the planned inauguration. It described the opposition’s swearing-in as an “extra-constitutional” effort and encouraged NASA to work within Kenya’s laws to pursue reforms.
The specific details of the opposition’s planned 12 December event remain somewhat unclear.
Nyong’o said people would be informed about the location of the inauguration in “due course” while the ceremony itself would be that which “befits the ceremony of inaugurating a president”. He would not be drawn on the opposition’s strategy following the inauguration, saying “we’ll unveil those steps”.
NASA has also raised questions about the attorney general’s right to make just a statement relating to the inauguration, according to Paul Mwangi, a lawyer who acts on behalf of NASA.
“The person who is supposed to pronounce himself on this matter would be the director of public prosecutions and he has not done so,” Mwangi told RFI by telephone.
“It is not for the attorney general to pronounce what would in law, in Kenya, amount to a criminal offense,” he added, outlining the different roles for the attorney general and office of public prosecutions provided for by Kenya’s 2010 constitution.
Mwangi said the most important factor is the contents of the oath of office used by Odinga during the inauguration. “The mere fact of taking an oath does not itself translate into a criminal act,” he said.
“I think a lot of the legal consequences of it will depend on what's in the oath,” said Mwangi, highlighting the drafting of the oath and what it aims to implement.
This view is separately echoed by the head of Kenya’s law society.
“It seems to me that their intention to swear in Odinga as people's president is a symbolic political gesture and not one intended or capable of conferring upon him the authority or function of the president of the Republic of Kenya,” said Isaac Okero, President, Law Society of Kenya.
“I cannot see how such an act can be construed as threatening the institution of the presidency of the Republic of Kenya,” said Okero, in response to emailed questions. He described the possible offence of treason as “couched problematically”.
Adding fuel to the fire
Undertaking its own inauguration could further aggravate the divisions between the government and the opposition, according to some Kenya watchers.
“It will be branded as treason so that Odinga can be arrested for treason if needs be,” Nic Cheeseman, a Kenya expert at the University of Birmingham, told RFI.
“They will also have little legal standing given the Supreme Court’s verdict on the election of the 26 October and the fact they did not stand in the election - you can’t really claim you won an election that you actually boycotted,” said Cheeseman.
“So while many will have sympathy for the predicament Odinga finds himself in, it is hard to avoid the conclusion that swearing him in would only makes things worse,” he added.
Odinga had won a challenge to Kenyatta’s re-election but then boycotted the re-run, demanding electoral reforms. Kenyatta won the re-run with more than 98 per cent of the vote and was sworn-in last week.