The Precedent for 'The President'

Since the return of multi-party party politics in Kenya, the competition to occupy the office of the President has been tough with candidates digging in to ensure that they are declared the next President of the Republic of Kenya after every General Election. During the campaign times, there has been a plethora of campaign posters that have been produced and descriptions made of what the particular party expects its candidate to be known as after the General Election.

In December 1992, the Daily Nation ran a front page bottom-right advertisement announcement with the poster of the then opposition leader Mwai Kibaki which had the tagline ‘President Kibaki’ and not the expected Kibaki For President. The newspaper was quick to add the words ‘Advertiser’s Announcement’ above the advert to allay any fears that it was supporting that candidate. After the elections, President Daniel Arap Moi made some comments in passing on how some people had referred to themselves with the title President and he had restrained himself from taking action.

It appears that President Moi was referring to the National Flag, Emblems and Names Act, Chapter 99 of the Laws of Kenya which is an Act created to prevent improper use of certain emblems, names, words and likeness for professional and commercial purposes. However under this Act, Part II of the First Schedule lists the names and words protected to include the name of the President amongst other words like Harambee, Jamhuri, Madaraka and Nyayo. Under Part III the office and dignity protected is ‘The President’.

In 2002, Mwai Kibaki who had been the Leader of the Official Opposition in the eighth Parliament used in his official campaign posters the words ‘Rais Kibaki’ which translates to ‘President Kibaki.’ However, one could again argue that this was a summarized form of telling people that if it came to the election of the President, vote for Kibaki just as much as one would have the words ‘Mbunge Livondo’ in a parliamentary battle.

This year has seen Raila Odinga refer to himself in his campaign posters and his website as ‘The People’s President’ which can again be interpreted as putting forth an argument rather than misinforming Kenyans on who their current elected President is. But who can make judgments if the Office of the President has been improperly used?

In matters of law, it therefore helps when one is aware of who are the makers, the enforcers, the advisers and interpreters of the law. The makers of the law should be Members of Parliament,

Recently, the Police Commissioner warned politicians against using the National Anthem and the words ‘His Excellency’ in reference to someone who is not an elected President of Kenya. Major General Ali may have been referring to the aforesaid Cap 99 but in such matters, it is always proper for someone warning someone of breaching the law to quote the law being breached for clarity.

For it cannot be that to sing the National Anthem is prohibited. Patriots will be livid to be told this. The National Anthem is sang at School Assemblies, at graduation ceremonies, cinema halls, football matches, at medal presentations at the Olympics yet no one raises a finger if this happens. If the complaint of Major General Ali is on the decorum of persons assembled, I wish he had seen recent Rugby World Cup Semi Final when the French players belted La Marseillaise with arms on shoulders of their teammates whilst President Nicolas Zarkozy was also singing all dignified in the royal box. Were the French players abusing the National Anthem? Of course, not! So is it wrong to whistle at the end of our Anthem? I doubt. The intention of the legislators was to prevent incidences of use of our Anthem in commercial matters for instance in commercial parodies. Our National Anthem is in fact, a prayer that even appears in some hymn books. ‘O God of all creation, bless this Land and our Nation…’ it begs the Deity. President Kibaki even quoted it when he was unveiling his new party the Party of National Unity at the Kenyatta International Conference Centre. He said

The foundation of my leadership is guided by the words of our National Anthem: Justice be our shield and defender. May we dwell in Unity, Peace and Liberty…’

In an age when the FM Radio Stations interview persons and find that they do not know the words to our National Anthem and where the Government Spokesman has been on the forefront of promoting the slogan ‘Najivunia Kuwa Mkenya’ what better way for persons to do so that belt out the National Anthem and seek God’s blessings to our country.

On Major Ali’s interpretation of the use of the honorific ‘His Excellency,’ this is a style of address that derives its origin from diplomacy and protocol. The honorific can be used to refer to the Vice President, Ambassadors, High Commissioners and Permanent Representatives to International Organizations and even the First Gentleman if we ever get to that stage. Lucy Kibaki is often addressed as ‘Her Excellency’ even though she is not a holder of an elected office.

Members of Parliament have the style ‘Honourable’. Courts have honorifics like ‘HisYour Lordship’ or ‘Your Honour’ whilst Local Authorities have the ‘His Worship’ honorific for the Mayor. Religious leaders also have honorifics. In the United States, Bishops may be referred to as ‘His Excellency’ though the practice in Kenya has been to style them as ‘His Eminence’ or ‘His Grace’ whilst the Pope gets the honorific ‘His Holiness’ and the Aga Khan is styled ‘His Highness.’

One of the questions pondered is whether persons who no longer hold such offices should be referred to by that form of address. Is retired President Moi still ‘His Excellency’? No less a person than the current President Kibaki has addressed Moi using this style of address. The first time this happened was at the funeral ceremony of the wife of Njenga Karume.

There is constant reference to Ambassador (Retired) Jack Tumwa of the Electoral Commission of Kenya and yet no reference to President (Retired) Daniel arap Moi. Better still, the Police Commissioner is still Major General Ali when he is not in the Army. However, retired Generals and Majors from the Army have had such designations even in their private lives just as much as retired Judges have still been referred to as ‘Justice’. Do such titles confer some professional achievement much like ‘Engineer’ or ‘Doctor’ or is it a case of persons holding on to titles. If former Members of Parliament are still addressed as ‘Honourable’ why not a retired President.

The Late Vice President Michael Kijana Wamalwa caused a stir when during the 2003 Madaraka Day invitation to the President to address the nation, he constantly referred to the President as ‘Mr. President’ rather than ‘Your Excellency.’ It was a cue taken from the United States that failed to pick up with other politicians. Once, retired President Moi asked politicians to stop referring to him as ‘Mtukufu Rais’ but politicians failed to pick that one up too. My suggestion is that the use of the word ‘President’ should be liberalized and the narrow interpretations such as those that Maj-Gen Ali wants us to adopt, should be rejected. It appears that we lost that opportunity when the then ruling party KANU had the post of President of the party and seemingly abolished it for the post of Chairman.

President comes from the word ‘preside’ which is to exercise control or authority. When Parliamentarians debated the restriction of the title ‘President’ in the 1960s, one of the arguments put forth was that Kenyans were illiterate and reference to more than one person as President would confuse people. I think to continue to have such limitations is to insult the intelligence of Kenyans. If you called a Class Prefect in Secondary, the Class President, no one will confuse him with the President of the Republic of Kenya! So I sympathize with those heads of Societies who in the 1970s were demoted from President to Chairmen in one fell swoop.

Already some organizations like Rotary Club have the post of President. It was very amusing when President Kibaki and retired President Moi were hosted to a luncheon on 22^nd February 2007 by the President Diamond Lalji of the Rotary Club and the local media were confused on how to address the three Presidents. In its report, KBC chose to refer to Lalji as Chairman whilst in the front page captions to the photographs of the three Presidents, the Daily Nation also chose to refer to Lalji as Chairman. The Standard however, worded its caption as follows: Former President Daniel arap Moi (left) accompanies President Mwai Kibaki and President Diamond Lalji of the Rotary Club of Nairobi...

Other bodies like the East African Law Society also refer to their head as President. This time, KBC had no problem referring to Tom Ojienda as President.

During the inauguration of President Bush, he had no trouble referring to the former Presidents of that country with the title President. I doubt that there would be Kenyans confused when you refer to Moi as President Moi. In fact, sometimes, when they call him Mr. Moi, you might think they are referring to his son Gideon Moi. If, no, when President Kibaki finally leaves office, we should have no problems addressing him as President Kibaki. If one thinks they can be confusion, the title ‘Retired President’ already has legal backing in the Presidential Retirement benefits Act (Act 11 of 2003) which defines the phrase under Section 2.

Former Vice Presidents like George Saitoti and Musalia Mudavadi should retain the dignity of their offices. In fact, during the unveiling of his vision, the master of ceremony referred to Musalia as ‘Your Excellency’. Similarly, when Kibaki presented his nomination papers during the 2002 elections, the Chairman of the Electoral Commission, Samuel Kivuitu addressed him as ‘Your Excellency’. I believe that was in recognition of his previous office rather than his future office.

As for Cabinet Minister John Koech recently addressing Raila as ‘Your Excellency’ during his defection to the Orange Democratic Movement or the Amagoro Parliamentary aspirant Fred Papa addressing Kalonzo as ‘Your Excellency’ during the launch of Musyoka’s presidential campaign, it appears that Under Part III of Cap 99 the style of address of ‘Your Excellency’ is not protected. For calling someone ‘Rais Mtarajiwa’ or ‘President-In-Waiting’ when he is not the ‘President Elect’ may be mere show of confidence that they will win the elections. Some may disagree on the need for the police commissioner to enforce such laws. But I would rather the police were more concerned about maintaining more order than law at public meetings since the National Flag, Emblems and Names Act is clear under Section 6 that no charge can in any way be brought for misuse of the Anthem or name unless consent is written obtained from the Attorney General.