Legitimacy is the right and acceptance of an authority of a particular regime. it is the belief that a rule, institution or a leader has the right to govern.
According to the leviathan theory the sovereign power to lead and govern the state belongs to the people of a particular society or country. This is because when a person is born he or she is born with immense power and authority and he can exercise it the way he wants while he is living in the state of nature. This is a very dangerous situation which Thomas Hobes referred as a state of nature where life is short, nasty and brutal. It is against this backdrop that the people in ancient society decided to have a small group of people who would exercise the sovereign collective power on behalf of the people for the common and greater good. This is how the concept of the Government came about. Government simply means a small group of people exercising the sovereign power on behalf of the sovereign people for the good of the people themselves.
It therefore follows that the person or the group of persons exercising the sovereign power on behalf of the people of a particular state must have the political and legal mandate to exercise that power otherwise such government will be illegitimate. The Doctrine of legitimacy is intertwined with the doctrine of democracy which is simply defined as Government by the people, by the people and for the people.
In all civilized democracies there is a legal infrastructure which outlines how the legal and political legitimacy is exercised. The legal legitimacy is always acquired through the dictates of the supreme law of a particular state and in most cases this is always outlined by the constitution. The constitution outlines how a leader should be elected, the legal requirements, the legal threshold and how such leader should assume power. It therefore follows that once a particular leader meets the legal threshold he acquires the necessary legitimacy to govern the country or a state as case may be.
The political legitimacy on the other hand is more of a political goodwill of the people in a particular society whereby the people of a particular state feels that the person who is governing them or the regime in power is the one which is rightfully exercising the power on its behalf. This form of legitimacy is a bit complex because one can have the necessary legal legitimacy but he does not have the political legitimacy but it should be noted that the legal legitimacy always takes the precedence.
THE KENYAN SITUATION
If someone want to make an argument as to whether the current regime has the necessary legitimacy to govern the country, he should as itself whether the said regime met the legal threshold to acquire legitimacy to govern the country.
The Kenyan constitution is very clear on how the election of the president of the Republic of Kenya should be carried out. The Constitution first of all provides that the body to conduct election in Kenya is the Independent Electoral and Boundaries Commission.
The Constitution also provides that a candidate for election of the office of the president must be nominated by his or her political Party.
The Constitution provides that the candidate for the office of the president must meet some requirements which include academic requirements.
The Constitution provides that for a candidate to be declared a winner for the position of the president of the Republic of Kenya must attain 50% + one vote of all votes cast and he or she should get at least 25% of the votes cast in at least 24 counties.
The constitution further provides that after a particular candidate is declared the winner any person who is not satisfied that such candidate was legitimately declared the winner such a person has seven days within which he or she can lodge petition to the Supreme Court of Kenya which should determine such petition within 14 days of the filing of the said petition.
It is therefore very clear that under Kenyan Constitution there is such an elaborate structure which outlines how legal legitimacy is acquired by a person or a regime that gets into power.
The question that then a person can ask himself is whether the current president met the legal threshold before he was declared the president of the Republic of Kenya after the election of 26th October 2017.
As to the question of whether the president was properly nominated by his political party it is clear that Uhuru Kenyatta was nominated by the Jubilee party as the candidate for the election of the president in the general elections.
The answer to the question as to whether Uhuru Kenyatta met the requirements for nomination as a candidate for the president of the Republic of Kenya the answer is to affirmative that indeed Uhuru Kenyatta met the threshold including being in passion of a degree in Political Science and Economics.
The answer to the question as to who conducted the election of 26th October 2017 the answer is that the said election was conducted by IEBC which is the body mandated to organize such election and declare the winner which it did. It is therefore right for us to state that Uhuru Kenyatta did not declare himself as the president of the republic of Kenya but was declared by the body which is constitutionally mandated to do so after being satisfied that he had met the threshold to be declared as such.
The Constitution provides that any person who is not satisfied with election and declaration of the winner of the presidential election is free to lodge a petition at the Supreme Court of Kenya. After the declaration of the victory of Uhuru Kenyatta as the President of the Republic of Kenya some two persons petitioned the Supreme Court and after a rigorous legal battle the Supreme court unanimously upheld the election of Uhuru Kenyatta to the office of the president of the Republic of Kenya.
The Constitution further provides how a person validly elected as the president of Kenya should assume such office and it clearly states that he should be sworn in by the Registrar of the High Court in a ceremony witnessed by the Chief Justice of the Republic of Kenya. This was actually followed to the letter when Uhuru Kenyatta was sworn in as the president on 28th November 2017 at Kasarani stadium.
It is therefore lawfully right to conclude that Uhuru Kenyatta has the Legal legitimacy to Govern the Republic of Kenya as its President.
The next question is whether Uhuru Kenyatta has the political legitimacy to Govern the country. Political legitimacy is not acquired through the legal process but endearing yourself to the people that you want to govern. It is done by coming up with policies that works for the interests of the majority of the people of Kenya or any state. We cannot close our eyes to the fact that on 26th October 2017 presidential election a substantial number of registered voters did not turn up for voting exercise and it is onus of the president to ensure that these people feel as the part of the country through engaging with them through their own leaders and coming up with development projects that will uplift their lives.
In conclusion it is clear that Jubilee regime is constitutionally in power and it is therefore the legitimate Government of the day having met all the requirements under the Leviathan theory. The question of political legitimacy can be addressed through coming up with policies to put substantially majority of voters in one board.
JULIUS GATHUKU NJUGUNA
ADVOCATE OF THE HIGH COURT OF KENYA AND POLITICAL ANALYST