Kithure Kindiki takes oath of office as CS for Interior and National Administration.
The inauguration of President William Ruto’s new-look Cabinet on Thursday, August 8, could have been much shorter if a judge’s recommendation from December 2022 was to be observed.
Do government officials need to take an oath of office? More so, are the words “so help me God” necessary? The answer to both questions, as considered by Justice James Rika, is no.
“The court would recommend that in keeping with the secularity of the State, oaths and affirmations in whatever form, are discarded from our laws. They do not assist in the establishment of the truth and in the administration of justice. They are anachronistic [belong in the past],” wrote Justice Rika.
He made the observation while determining a case where a witness had refused to use the remark “so help me God” to constitute an oath before testifying. The witness had argued that he was an atheist, but the other side had insisted that because the Kenyan Constitution acknowledges the supremacy of God, and the national anthem refers to Him, then the witness, Karega Munene, had to mention the deity.
The judge considered the argument that mentioning God is meant to make people toe the line and not lie or deviate from what they promised to do. His observation was that it is often lip service.
“Frequently, a witness will take oath in the name of God, or is affirmed, but proceeds to openly give serial untruths to the Court,” he said. “Presidents, legislators, and other senior State officers are sworn in the name of God, to uphold and protect the Constitution, and spend their entire tenure of office, mutilating and ravaging the Constitution.”
Justice Rika’s findings have been immortalised by being reported by the Kenya Law Reports. Had they been followed, gazettement could be as well the last step in the appointment of various office holders.
“Swearing a witness by God, by body organs, or by slaughtering a male goat, does not assist the course of truth and the administration of justice,” observed the judge. “There is a need to rethink the usefulness of oaths and affirmations in judicial proceedings and public service.”
The Kenyan Constitution, in its third schedule, sets out the words to be read when taking up office for various leadership positions: President, Deputy President, Cabinet Secretary, Secretary to the Cabinet, Principal Secretary, Chief Justice, all judges, Member of Parliament, and the Speaker and Deputy Speaker of the Senate and National Assembly.
The Constitution implies that the ending “so help me God” is optional. The person taking the oath can omit them, and if they do, it is called a “solemn affirmation”. If they say “so help me God”, it is called an “oath”.
During the Thursday event, all the Cabinet Secretary nominees used the “so help me God” phrase.
There is a whole piece of legislation governing oaths and affirmations. It is called the Oaths and Statutory Declarations Act, which goes as far as saying that a Kenyan can take an oath aligned to the tribe he or she comes from.
“Any African, not being a Christian or a Mohammedan, required by law to take an oath shall take the oath in the form common among and held binding by the members of the tribe to which such African belongs, and when such African belongs to a tribe the members of which hold no form of oath binding upon them he shall be required to make solemn affirmation in the form now in use,” says the Act.
The history of oath-taking is derived from the Roman Empire, and there are theories that the word “testify” has roots in the human testes, because this is what men used to swear by at some point. However, some schools of thought believe the word has roots in “tris”, meaning a third person standing by.
“The Bible, in the Old Testament, appears to support the Roman theory on testicular oaths and affirmations. In the Old Testament, to swear a most sacred oath, the swearer made his oath by holding on to the oath giver’s genitals,” justice Rika noted in his judgement.
“In Genesis chapter 24, Abraham said to the senior servant in his household, ‘Put your hand under my thigh. I want you to swear by the Lord… that you will not get a wife for my son from the daughters of the Canaanites.’ So the servant put his hand under the thigh of his master Abraham, and swore. In Genesis chapter 47, when the time came for Israel [Jacob] to die, he called Joseph and said to him, ‘Put your hand under my thigh and promise that you will not bury me in Egypt…’ Then Joseph swore to him, and Israel worshipped, as he leaned on the top of his staff,” he added.
Even before the Roman ideologies seeped into Africa, some communities were known to have various types of oaths, and one of the most famous was among the Kikuyu that was meant to protect secrets around the armed struggle for independence.
The outlawed Mungiki sect was also known to administer an oath derived from the Mau Mau one. Both involved a goat.
Elsewhere in the world, mafia are also known to administer oaths among their ranks to check against divulging secrets.
