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Published on April 17, 2008, 12:00 am

By David Ohito

Exactly what words Mr Raila Odinga will utter in his oath of allegiance as Prime Minister remained unclear last night as a fresh controversy appeared to stalk his swearing in and that of his deputies.

Lawyers were last evening trying to figure out which form of the oath the MP for Lang’ata would take when his turn to be sworn in as Prime Minister comes.

The law does not provide for a specific oath for Prime Minister and the two deputies. The Constitution only recognises oaths for the offices of the President, Vice-President, Attorney-General, Ministers and Assistant ministers.

These are provided for in the Promissory Act — an Act of Parliament that

prescribes the oaths or affirmations to be made by officials, and for purposes of an office.

At the core of the fresh controversy is whether it would be one or both of the two oaths tailored for the President that would be amended and handed to the PM to read.

According to former Kabete MP and a leading lawyer, Mr Paul Muite, Raila can only swear to protect the Constitution and uphold it since he derives his authority from the amended constitution.

On Wednesday, Muite, arguing that the PM derives his authority directly from the Constitution, noted: “The wording of his oath must be changed so that he swears allegiance to the Constitution and not to the President like is the case with the Vice-President and other ministers.”

Muite added: “His (Raila’s) executive authority is not delegated. Neither is he an agent of the President. Like the President, the PM should swear allegiance to the Constitution and to the Republic.”

However, the President takes his oath before the Chief Justice, while the Vice-President, Ministers, Assistant ministers and Secretary to the Cabinet take their oaths of office before the President.

The presidential oath of allegiance as spelled out in Constitution reads as follows: “I…do swear that I will be faithful and bear true allegiance to the Republic of Kenya, and that I will preserve, protect and defend the Constitution of Kenya as by law established. So help me God.”

The Second Oath of the President reads: “I… do swear that I will faithfully and diligently discharge my duties and perform any functions of the high office of President of the Republic of Kenya and that I will do right to all manner of people according to the laws and customs of the Republic without fear or favour, affection or ill will. So help me God.”

Muite, who headed the powerful Administration of Justice and Legal Affairs committee in the last Parliament, said the wording of the oath of office of the PM and the deputies was overlooked although it should have been in some of the statutes amended.

“Exercising executive authority of the Prime Minister is vested in the Constitution directly. This position is more anchored compared to the Vice-President who enjoys delegated authority,” Muite said.

Raila, alongside two deputies, Mr Uhuru Kenyatta and Mr Musalia Mudavadi, will be required to take oath of office after they were appointed.

In addition to taking the oath of office as deputy PMs, Kenyatta and Mudavadi will also do so for their respective dockets of Trade and Local Government.

Inconsistent with constitution

The ceremony, to be conducted at State House, Nairobi, will be attended by regional leaders, members of the diplomatic corps, dignitaries and other guests. Former UN Secretary-General, Dr Kofi Annan, who brokered the peace deal that ended Kenya’s most crippling political crisis in its four decades of self-rule, will be present at the occasion. He arrived in the country last night.

Also expected at the fete are Ugandan President, Mr Yoweri Museveni, Burundi Vice-President and Tanzania Prime minister.

But Muite poked holes in the National Accord and Reconciliation Act, saying it is unsatisfactory because Section 2 (A) of the Constitution recognises a multi-party democracy and no MP should be required to swear allegiance to the President.

“The MPs have no business swearing allegiance to the President. Instead, they should check and balance his authority in a multi-party democracy,” asserted Muite.

On January 15, Kenyans witnessed hours of melodrama on live TV as a long-drawn battle of wits unraveled in the House on a night MPs tussled over the oath of allegiance.

Raila and a number of his Orange Democratic Movement (ODM) MPs-elect, omitted the presidency as they read the oath during a drama-filled contest.

The thrust of the ODM’s argument was that President Kibaki’s election was in doubt, while the Government side, led by equally combative Party of National Unity (PNU) MPs, said it was a matter for the courts to determine.

Mr James Orengo, the Ugenya MP, who will today take his oath as Lands minister, kicked off the storm when he demanded that President Kibaki sits on the ordinary members’ bench on the Government side, arguing that there was ‘contenstation’ over his election.

During the heated session, Budalang’i MP, Mr Ababu Namwamba, and his Mbita counterpart, Mr Otieno Kajwang’, now in charge of the Immigration and Registration of Persons docket, argued that subjecting members to swearing by the name of the Executive was equivalent to compromising their role of checking it.

Raila omitted the presidency in the oath, followed by several MPs allied to him, who were, however, not as lucky as they were forced by House Speaker, Mr Kenneth Marende, to repeat the oath without omitting the presidency.

Stepping in to end the row, Attorney-General, Mr Amos Wako, said there was need to differentiate between the Head of State and the head of Government, adding that the two had been fused together in Kenya.

“The oath does not prejudice anyone because we all belong to the State and the Head of State is the symbol of unity,” Wako argued.

Contributing to debate, Marende said if members felt the oath needed to be changed, it was a matter they could deal with when the House was constituted. But it would appear that the matter hasn’t been dealt with and Raila, who together with ODM has since entered into a power-sharing deal with PNU, will again return to the spotlight with focus on his oath of allegiance.

“The Promissory Oaths Act of 1958 is obsolete and needs to be repealed to include the office of the Prime Minister and that of deputy Prime Ministers,” Mr Otiende Amollo, a lawyer, told The Standard.

“Under the Promissory Oaths Act, neither the office of PM nor the deputies is recognised in the Constitution because when the National Accord was promulgated, the form of oath for the PM’s office was not included,” he said last night.

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