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Nairobi County's looming constitutional crisis calls for Uhuru's intervention

By Kethi D Kilonzo | Published Sun, October 7th 2018 at 00:00, Updated October 6th 2018 at 20:09 GMT +3
President Uhuru Kenyatta.

Polycarp Igathe was nominated as the Deputy, and was elected together with the Governor of Nairobi, Mike Mbuvi Sonko. In January 2018, Igathe resigned from the murky political waters and went back to the familiar comforts of the corporate world. 

Governor Sonko on May 16, nominated and submitted to the Nairobi County Assembly the name of Dr Miguna Miguna as his new Deputy. This nomination came after the deportation of Miguna to Canada by the National Government in February and March 2018. The Nairobi County Assembly rejected the nomination of Miguna, stating that he did not qualify for the position as he held dual citizenship. No other nomination of Deputy Governor has been made by Governor Sonko. Ten months later, the position of Deputy Governor remains vacant. 

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Under Article 182 of the Constitution, the office of a Governor becomes vacant if he dies, resigns, ceases to be eligible to be elected governor, is convicted of an offence punishable by imprisonment for at least 12 months, or is removed from office. The Deputy Governor then assumes office as Governor for the remainder of the term.

If a vacancy occurs in the offices of the governor and his deputy at the same time, or if the deputy is unable to assume office, the Speaker of the County Assembly acts as governor for 60 days within which period a new governor should be elected.

Impeached Speaker

On September 6, the Speaker of the Nairobi County Assembly, Beatrice Elachi, was impeached by a majority of the Members of the County Assembly.

She moved to the Employment and Labour Relations Court and obtained temporary orders stopping her removal.

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On September 25, as the court case was continuing, the Members of the County Assembly appointed one of their own, Chege Mwaura, as acting Speaker in the place of Elachi.

Who of the two, the Acting Speaker, or the impeached Speaker, would take over running of the capital city if there was a vacancy in the office of Governor?

There is a power vacuum in the Nairobi County Government. There is no deputy governor to take over should the governor die, resign, cease to be eligible to be governor, or be removed.  There is a court dispute over who is Speaker of the County Assembly as a result of which there is no one capable of holding the office of Governor for the 60 days within which the election should be held to fill the office of Governor. 

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The power vacuum, created by the failure to nominate and appoint a deputy governor and the dispute over the office of the Speaker of Nairobi County Assembly, is a threat to the stability and continuity of the most important county government in Kenya. 

This power vacuum can so easily transform into a constitutional crisis. Corrective action should be taken and there are several government agencies that can assist or intervene.

The Supreme Court in 2018 issued an advisory opinion that a governor should nominate a person to fill the office of the Deputy Governor within 14 days of any vacancy, and the County Assembly should vote on the nomination by the Governor within 60 days of receiving it.

Senate has the legislative power to move a bill to amend the Constitution and the County Governments Act to put a time limit within which a Governor must nominate a replacement deputy governor. Senate can follow the lead of the Supreme Court in its advisory opinion and put a time limit of 14 days. 

The President, like he did for Makueni County, can form a commission to inquire into and recommend whether the suspension of the Nairobi County Government is the best course of action to take to protect the County and to prevent a potential constitutional crisis.

- The writer is an Advocate of the High Court of Kenya. [email protected]

 

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