Deputy Governor's position cannot be vacant until new term: Supreme Court

Nairobi Governor Mike Sonko and his Nyeri counterpart Mutahi Kahiga are now free to nominate new deputies after the Supreme Court cleared the way.

In a landmark advisory issued yesterday, the highest court in the land declared that the Constitution does not envisage a vacancy upon death, impeachment, resignation or Deputy Governor’s assumption into the Governor’s office.

The court declared that the Governor has 14 days to nominate a person to the office after which the County Assembly, within 60 days, will vote to either reject or allow the individual to assume office.

In Nairobi, Deputy Governor Polycarp Igathe resigned in a huff while in Nyeri, Mr Kahiga assumed the office of the Governor following the sudden death of Governor Wahome Gakuru through a road accident.

Even before these events, there has been debate over what happens in the event the office of a deputy governor falls vacant.

The Supreme Court Judges - Chief Justice David Maraga, his deputy Philomena Mwilu, Justices Mohamed Ibrahim, Jackton Ojwang’, Njoki Ndung’u, Smokin Wanjala and Isaac Lenaola - declared that the position cannot be filled through another election.

They held that the deputy assumes office through nomination by the Governor and that the two offices are inseparable.

“We are therefore of the definite opinion that the office of the Deputy Governor ought not to remain vacant until the next General Election,” the judges ruled.

Justice Wanjala, reading the verdict on behalf of his colleagues, said the Constitution does not contemplate the filling of a vacancy in the office of the Deputy Governor through direct election.

The judges ruled that where a vacancy occurs in both offices at the same time, the deputy’s office ought to remain vacant until the election of a new governor.

It is the new governor who will nominate a person to fill the position within 14 days, then the assembly will affirm or reject the nomination within 60 days.

Opinion leaders had said that the Nyeri Governor would not nominate a deputy until the end of the term as he was not directly voted by the people. The judges observed that the offices of the governor and the deputy are intertwined, hence the office cannot be left vacant for the remainder of the term.

The advisory opinion was sought by Embu County Assembly Speaker after Martin Wambora’s impeachment.

power Question

He argued that since the law is silent on what should happen, Kenya should adopt the United States of America’s or Nigeria’s trend of allowing a deputy be nominated if the position falls vacant.

On the other hand, he proposed, it should be left vacant for the remainder of the term but there must be officers who have the powers of conducting the functions of that office.

The Attorney General was of the view that it would be unconstitutional to fill such a vacancy and the county ought to run without a deputy until a new election is conducted.

“The Constitution does not provide for the replacement of a Deputy Governor, and the incoming Governor has no powers to nominate or appoint a deputy,” he argued.

The Independent Electoral and Boundaries Commission (IEBC)’s was of the view that the two county chiefs are intricately enjoined in the hip; as such it is assumed that the deputy equally derives his power from the electorate.

IEBC argued that the deputy governor should be nominated, but with the approval of the county assembly.

With regard to the timelines, IEBC held that the nomination should be done immediately the office falls vacant. It was the Wafula Chebukati-led commission’s view that the new deputy should take office within 60 days.