Chief Magistrate Stephen Mbungi Rules on Odinga Swearing - In

Chief Magistrate Stephen Mbungi ruled that the oath taken by the Orange Democratic Movement leader after the disputed 2017 presidential election was not unlawful, and that he would have only been held responsible if he used his swearing-in to commit a crime.

“From the content of the oath, Hon Raila Odinga swore himself to the office of the people’s president which does not amount to any crime. He would have only breached the law if he swore himself as the president of the Republic of Kenya,” ruled Mr Mbungi. According to the magistrate, Raila’s actions did not amount to treason as claimed by the Director of Public Prosecutions and the oath he took was lawfully administered in accordance with oaths and declaration laws.
He said that the swearing-in would have only amounted to treason if Raila and the organisers of the event declared their intention to overthrow the Government. He added that the manner in which the President is sworn into office is provided for in the Constitution, and that what Raila and his supporters did on that day was not unconstitutional. “The oath does not talk of the people’s president of the Republic of Kenya. It only talks of the President of the Republic of Kenya. It was not unlawful for it did not bind Mr Odinga to commit any crime or did he swear himself to a lawfully established office when not qualified for it,” he ruled.  

Taken to court

Mbungi made the declarations when he acquitted Ruaraka MP Tom Kajwang’ from charges of treason and taking part in unlawful assembly. The incident happened on January 30, 2018 at Uhuru Park in Nairobi when Raila and the National Super Alliance coalition refused to recognise President Uhuru Kenyatta’s re-election and resolved to swear him in as the people’s president. Raila’s oath was administered by Mr Kajwang’ and lawyer Miguna Miguna who was also arrested and deported to Canada on allegations that he is not a Kenyan citizen. The MP was subsequently charged before the Chief Magistrate’s court in Ngong with two counts of committing a capital offence of treason and for taking part in an unlawful assembly. But the magistrate ruled that although the prosecution established that Kajwang’ and Miguna were at the venue, there were thousands of people who attended Raila’s swearing-in and that it was wrong to point fingers only at the two. “From the evidence on record, I am satisfied that Hon Odinga took an oath, but it is not clear who administered the oath on him. Prosecution did not adduce evidence to show whether Miguna Miguna and Tom Kajwang were qualified and did administer the oath,” ruled Mbungi. He ruled that there was no evidence to show Kajwang’ consented to swear in Mr Odinga, and that his mere appearance and mode of dressing cannot be implied to mean he is the one who administered the oath. He added that to assume that the MP acted like the Chief Justice by mode of his dressing was wrong since the law prescribes the attire to be worn by the CJ when swearing-in the president. 

Organisers of rally 

“The attire he wore that day is the normal one worn by advocates of the High Court and to me there is no law or rule which restricts when and where it can be worn,” ruled Mbungi. On the second count of organising an unlawful assembly, the magistrate ruled that the meeting at Uhuru Park did actually take place, but there was no evidence to prove it was Mr Kajwang’ who organised it. He stated that since the prosecution failed to link him to planning and organising of the meeting, it would be wrong to find him guilty for failing to seek police permit and clearance from Central Police Station. “The fact that the accused is a known member of NASA cannot make the court to assume that he was concerned with organising the event since it is possible the meeting was organized by other people and he was only one of the invited guests,” ruled the magistrate. The magistrate concluded that the evidence presented by the prosecution was not strong enough to warrant putting the MP on his defence and acquitted him with no case to answer.

For Standard Group Media