sonko1The discussion has been heated on social media. Did Nairobi Senator Mike Sonko commit treason when he declared himself the ‘acting president’?

First and foremost, we should define treason.

Under Kenya’s Penal Code (cap.63), treason is conduct/speech intended to overthrow the government, harm or kill the president, or instigate or engage in war against the Republic. Anyone found guilty shall be sentenced to death.

Can Sonko’s speech be seen as intention to overthrow the government?

For a start, although completely false, Sonko declared himself third in command. He did in fact acknowledge the authority of the President and his deputy, and showed no intention of holding on to the ‘imaginary presidency’ once they returned from their trips abroad.

It’s my opinion that the Senator, especially judged by his history of loose talk, showed no intention of overthrowing the government either by speech or conduct. He actually exhibited pride in being associated with it, speaking of his closeness to the President.

That said, the confusion would not arise if Kenya had a clear ‘Presidential line of succession law’.

The closest law we have is the Order of Precedence and Titles Act. This is the same law that bans governors from having sirens on their cars.

The act lists government officials in order of seniority as follows.

The Order of Precedence
(a) the President
(b) the Deputy President
(c) the Speakers of Parliament
(d) the Chief Justice
(e) Former Presidents/Prime Ministers
(f) Leader of Majority Party
(g) Leader of Minority Party
(h) Former Vice Presidents/Deputy Presidents
(i) Members of Parliament/County Governors
(j) Justices of the Supreme Court
(k) Judges of the Court of Appeal
(l) Judges of the High Court
(m) Cabinet Secretaries/Attorney-General/Auditor-General
(n) Principal Secretaries
(o) Chief of the Kenya Defence Forces
(p) Inspector General of the National Police Service/ Director General of the National Intelligence Service
(q) Chairpersons of constitutional commissions
(r) Commissioner of Prisons
(s) Ambassadors and High Commissioners

The act goes on to state.

The Order of Precedence shall be used to—
(a) determine and rank State Officers and public officers;
(b) develop seating charts, programmes and the order in which government officials deliver addresses at all state functions;
(c) any other matters of protocol at state and public functions.

If this is the law that would determine the Presidential line of succession, Sonko is clearly very far from number 3.

However in an ironic twist of events, the law categorically states that it is not to be used in the succession of duties.

It states, “The Order of Precedence does not in any way or form impute a succession of duties, or reflect the presidential line of succession or affect the status of the arms or branches of government under the Constitution.”

So, does Kenya have a proper presidential line of succession? The short answer is No.

The drafters of the constitution went just 2 levels deep. If the Presidency becomes vacant, the Deputy President takes over for the remainder of the term. If the Deputy Presidency is also vacant, the speaker of the national assembly shall act as president and an election shall be held within 60 days.

If the speaker is also unavailable, I assume that’s when anarchy reigns.

Contrast that with the US which has a very clear and comprehensive order of succession.

US Presidential Line of Succession
1. Vice President
2. Speaker of the House of Representatives
3. President pro tempore of the US Senate (Longest serving senator from majority party)
4. Secretary of State
5. Secretary of the Treasury
6. Secretary of Defense
7. Attorney General
8. Secretary of the Interior
9. Secretary of Agriculture
10. Secretary of Commerce
11. Secretary of Labor
12. Secretary of Health and Human Services
13. Secretary of Housing and Urban Development
14. Secretary of Transportation
15. Secretary of Energy
16. Secretary of Education
17. Secretary of Veterans Affairs
18. Secretary of Homeland Security

Furthermore at any event where most of the country’s leadership is present, eg. the state of the union address, there is a ‘designated survivor’. (A person in the presidential line of succession who must be physically distant and in a secure, undisclosed location to serve as president if anything happens to the rest of the leadership)

Kenya should definitely borrow some of these established guidelines and loose talk like that of Sonko’s will be a thing of the past.

That brings us to the poll.