Any person who, owing allegiance to the Republic, in Kenya or elsewhere—(a) compasses, imagines, invents, devises or intends—
(i) the death, maiming or wounding, or the imprisonment or restraint, of the President; or
(ii) the deposing by unlawful means of the President from his position as President or from the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya; or
(iii) the overthrow by unlawful means of the Government; and(b) expresses, utters or declares any such compassings, imaginations, inventions, devices or intentions by publishing any printing or writing or by any overt act or deed,is guilty of the offence of treason. - Section 40, the Penal Code (Cap. 63, laws of Kenya)
A charge of treason has two elements, if it is to be sustained at prosecution: a person must (a) compass, imagine, invent, device or intend a treasonous act, and (b) express, utter or declare the compassing, imagining, inventing, devising or intending of the treasonous act.
I have highlighted one of the treasonous acts; the deposing by unlawful means of the President. It is described in the alternative: it is either deposing the President from (a) his position as President or (b) the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya.
The Senator of Nairobi has been accused of treason (or a treasonous act) by certain members of the Bar and the Director of Public Prosecutions has directed the Inspector-General of Police to investigate the conduct and utterances of the Senator because it has come to the attention of the DPP that the Senator has engaged in disruptive conduct and uttered words to the effect that he is the acting President of the Republic of Kenya. The DPP, however, does not accuse the Senator of treason; he merely thinks that the Senator's conduct is disruptive; he has no opinion on the utterances of the Senator. The highlighted words are the ones most likely to be applied against the Senator if the Inspector-General investigates him for, or the DPP charges him with, treason. But are they apposite?
Did Mike Sonko, eponymous and colourful, depose Uhuru Kenyatta by unlawful means from (a) his position as President or (b) the style, honour and name of Head of State and Commander-in-Chief of the Armed Forces of the Republic of Kenya? Were Mike Sonko's words treasonous as some lawyers have suggested and was his behaviour disruptive as the DPP has implied? The most common definition of treason is
"the crime of betraying one's country, especially by attempting to kill the [sovereign] or overthrow the government"
and that of disruptive is
"causing or tending to cause disruption"
and includes behavior that may be characterised as "troublesome, unruly, rowdy, disorderly or wild." These are not characterisations that can be applied against Mr Sonko if what the video shows is the whole picture.
The reactions to Mr Sonko's utterances betray the lack of proportion in our politics, especially when one takes into account the depths of sycophancy inherent in a system that is built on a considerable degree of patronage. It explains why the loudest brown-nosers are the ones who have taken the greatest umbrage at the utterances of the colourful senator. The presidency did not lose face simply because Mr Sonko uttered a provably false statement; that ship sailed a few decades ago when a sitting president wondered aloud
If you go to Fred Kubai’s home, he has a big house and nice shamba. What have you done for yourself? We were together with Kungu Karumba in prison and now he runs his own business…Kaggia! What have you done for yourself?
The presidency will survive Mr Sonko's utterances. The Republic will not fall because the Senator has an unruly tongue. Perhaps it is time we asked whether treason need be defined as it is in the Penal Code today. Perhaps it is time we examined what it means to elect the most colourful and most politic among us. Perhaps it is time we challenged the rule that says no one can say mean things out the president without things getting out of hand. If you think that Mr Sonko's utterances should be punished by his being hanged by the neck until dead, you have serious issues. You need psychiatric help.