The postponement of the eagerly-awaited swearing-in of the winner of the 8th August election will come as a great disappointment to the vast majority of Kenyans. But with Mr Kalonzo Musyoka, who would have been sworn in as Deputy President, out of the country, and with his wiper Party asking that the swearing-in be delayed until his return, postponement was the only option that existed.
The threats by the Attorney General to prosecute for treason Mr Odinga and anyone else sworn in was of course laughable. The Attorney General was shamelessly carrying out unlawful instructions from his boss Uhuru Kenyatta to pronounce on this matter. Under our Constitution, it’s not the Attorney General who determines what is legal or not. Indeed, the Attorney General is specifically restrained from commenting on anything to do with matters criminal. That area is the exclusive preserve of the Director of Public Prosecution.
If the Attorney General did not even know he could not make a pronouncement on this matter, his declaration about treason would have been laughed out of court.
The legality of Mr Odinga’s swearing in was based on the simple fact that he had won the 8th August election. The Supreme Court had nullified the declaration of Uhuru Kenyatta as President, but it did not nullify the result of that election. The Court had directed the Electoral Commission to provide access to the its server as the server provided the only incontrovertible evidence of the election’s outcome. In what must easily rank as the greatest instance of contempt of court, the Electoral Commission refused to provide the access.
If the Court had had access to the server, Mr Odinga would have been sworn in as the President a long time ago. NASA has now obtained the logs from the server, which recorded the voting results from each county and from each polling station in the country. The figures show that Mr Odinga comfortably won the election by over a million votes. So it was the loser, Uhuru Kenyatta, who was fraudulently declared the winner by the Electoral Commission.
The swearing in of Mr Odinga as President and of Mr Kalonzo Musyoka as Deputy President would have been perfectly legal on Tuesday. And it will be perfectly legal when it does happen.
Salim Lone, Adviser,
NASA flagbearer Raila Odinga