What Happens if a Chief Justice Fails to Swear in the President?

Who swears in the President? Is the Chief Justice the only person who can swear in the president in Kenya?

Chief Justice David Maraga raised a pertinent question in a TV interview recently. What would happen if the Chief Justice and the Deputy Chief Justice failed to turn up for the swearing in of a President-elect?Neither the Constitution of Kenya 2010 nor the Assumption of the Office of President Act answers that question.

The two pieces of law provide 16 clear conditions under which the swearing in of a President-elect must be conducted.Article 141 of the constitution in Article 141 is very specific on when, where and how a President-elect should be sworn in. The same is elaborated by Sections xxx to xxx of the Act.

One, the swearing must be on a Tuesday.

Two, the day must be the first Tuesday that comes 14 days after declaration of the Presidential election results.

Three, if the results are challenged in a petition in court, the swearing must be the first Tuesday that falls 14 days after the determination of the petition.

Four, the swearing must be in Nairobi, the capital city.

Five, it must be conducted in a public place as a public ceremony.

Six, it must be conducted after 10am and before 2pm.

Seven, Tuesday must be a public holiday. Eight day and place must be gazette.

Nine, President must take two oaths – the oath or affirmation of allegiance and the oath or affirmation for the execution of the functions of office.

Ten, oath or affirmation must be administered to the President-elect by the Chief Registrar.

Eleven, oath or affirmation must be administered before the Chief Justice.

Twelve, If the chief Justice is absence the oath must be administered before the Deputy Chief Justice. The DCJ shall undertake the task only in circumstances where the Chief Justice is incapacitated.

Thirteen, upon taking or subscribing to the oath or affirmation the President must sign a certificate of inauguration in the presence of the Chief Justice or the DCJ.

Fourteen, upon signing the certificate of inauguration, the outgoing President must hand over to the new President a sword and the Constitution as instruments of power and authority unless the incumbent has been reelected.

Fifteen, the Deputy President shall take the oath or affirmation in the same manner.

Sixteen, the President shall give an inauguration speech to the nation, upon the swearing in of the Deputy President elect.

The constitution does not state what happens if the CJ and the Deputy CJ are both indisposed or unavailable for the swearing. Being the senior most judicial officers, the most likely fall back would be to call in the third in the judicial order of seniority. That would be the third senior-most judge of the Supreme Court.

Leave a Reply

Your email address will not be published. Required fields are marked *