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Why Uhuru’s Presidency remains illegitimate despite its legalization by the Supreme Court

By Samuel Ndalusia

November 20th, 2017

The Supreme Court of Kenya on Monday, November 20, 2017 unanimously upheld the re-election of President Uhuru Kenyatta in the repeat election that was conducted on October 26, 2017 consequently dismissing on account of lack of merit, the two petitions that had been filed by the former Assistant Minister Harun Mwau, Njonjo Mue and Khelef Khalifa. The president-elect will now be sworn into office for his second term on Tuesday, November 28, 2017 as per Article 141 on the Assumption of Office.

“The court has unanimously determined that the petitions are not merited and the final orders are that the petition by John Harun Mwau versus the Independent Electoral and Boundaries Commission and two others as consolidated is hereby dismissed,” read the verdict by Chief Justice David Maraga on behalf of the six-judge bench.

“The petition by Njonjo Mue and another versus the Chairperson of the Independent Electoral and Boundaries Commission and three others as consolidated is also hereby dismissed. As a consequence, the presidential election of October 26 is hereby upheld as is the election of Uhuru Kenyatta,” added Chief Justice David Maraga.

The Supreme Court of Kenya had on September 1, nullified the August 8 presidential vote citing illegalities and irregularities by the electoral body, consequently ordering a new vote to be held within 60 days. The opposition presidential candidate Raila Odinga, had petitioned the Supreme Court to nullify the election which the court did after discovering errors in the transmission system and in the forms used to declare results, which lacked security features.

Legality versus Legitimacy

However, while the Chief Justice David Maraga and the six-judge bench have unanimously legalized president Uhuru Kenyatta’s re-election, the question of legitimacy among the majority of Kenyans still remains to haunt the son of Kenya’s founding father, Mzee Jomo Kenyatta aka Johnstone Kamau.

Generally, Legality is considered as a question of action i.e. a case of whether or not a situation or action is in violation of law, statutory or common. Legitimacy on the other hand is a question of origin or support for an action i.e. whether or not a figure of authority has validly assumed their role.

In a statement read by the NASA leader’s advisor Salim Lone, shortly after the Supreme Court pronounced its verdict, Raila insisted that the opposition coalition considers President Uhuru Kenyatta and the Jubilee government illegitimate and therefore do not recognize it. The opposition leader explains that since some constituencies in the country did not participate in the repeat October 26 “sham” election, they cannot be under authority of President Kenyatta.

“We in NASA had repeatedly declared before this Supreme Court ruling today that we consider this government to be illegitimate and do not recognize it,” read Mr Lone, adding that, “This position has not been changed by the Court ruling, which did not come as a surprise. It was a decision taken under duress. We do not condemn the court, we sympathize with it.”

Meanwhile, unconfirmed reports have indicated that the NASA coalition leader travelled to Tanzania on the evening of Sunday, November 19, to have talks with the country’s President Magufuli on the possibility of him (Raila) forming a government from Tanzania. Raila is expected to announce to Kenyans and his supporters the next course of action as he explains to the public what he meant by the “third republic.”

The Jubilee party leaders now fear that the opposition coalition leader might just actualize his threats by being sworn in from Tanzania. This is what the Gatundu South legislator Moses Kuria updated on his Facebook page today: “Raila Odinga arrived in Zanzibar yesterday. He plans to form a government-in-exile from there…..”

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