Treasury CS Henry Rotich is facing graft charges in the multibillion-shilling Arror and Kimwarer dams' scandal.
The CS and his PS Kamau Thugge have pleaded not guilty to the charges. But pressure will mount on them to step aside, with Chapter Six of the constitution that defines the conduct of public officers being quoted, pending the concussion of their cases.
The President can also fire him as he did with Sports CS Rashid Echesa but most likely he will let things take their own course considering the politicisation of the case.
Rotich, PS Kamau Thugge and 26 others are facing at least 10 charges among them abuse of office, conspiracy to defraud and engaging in a project without planning.
He was arrested on Monday following orders by Director of Public Prosecution (DPP) Noordin Haji.
Social media has since been rife with speculation of what could happen if a sitting Cabinet Secretary steps down.
If a CS resigns, says lawyer Charles Kanjama, “A vacancy is then declared which the president can fill by appointment as per the law.”
Should Treasury CS Rotich resign, the president will be required by law to nominate another, forward the name to parliament for vetting and approval, which if successful, he will then appoint as the new Cabinet Secretary.
According to Chapter Nine, article 152 of the Kenyan constitution, "The President shall nominate and with the approval of the National Assembly, appoint and may dismiss the Cabinet Secretaries."
The law further states that "Each person appointed as a Cabinet Secretary may resign by delivering a written statement of resignation to the President."
Clause 5 of article 152 further says that the President may "re-assign a Cabinet Secretary, dismiss a Cabinet Secretary or dismiss a CS if required to do so by a resolution adopted by Parliament."
Clauses 6 to 10 of the same article defines situations under which a cabinet secretary could be dismissed.
These include, If a member of the National Assembly, supported by at least one-quarter of all parliamentarians, may propose a motion requiring the President to dismiss a Cabinet Secretary "(a) on grounds of a gross violation, (b) where there are serious reasons for believing that the Cabinet Secretary has committed a crime under national or international law, or (c) for gross misconduct."
A Cabinet Secretary can be impeached if at least one-third of the members of the National Assembly could pass an impeachment motion.
If this happens, parliament will then appoint a select committee comprising eleven of its members to investigate the matter and the select committee shall, within ten days, report to the Assembly whether it finds the allegations against the Cabinet Secretary to be substantiated.
However, President Uhuru Kenyatta can appoint an acting Cabinet Secretary and PS, as he did with Interior CS Fred Matiang'i when Joseph Nkaissery died in 2017.
Treasury, being one of the most powerful dockets within Cabinet cannot remain without a functional head.
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