The Kenya Law Review Commission (KLRC) had flagged legal inconsistencies that would arise in the event a governor’s office fell vacant, but the legislative proposals were not followed through.
Attorney General Githu Muigai reportedly said the changes proposed to cure the inconsistencies in the law such as filling the vacancies that have arisen in the office of the Nyeri Deputy Governor (DG), the county cabinet and county secretary, were substantive.
Prof Muigai declined to include the amendments in the Statute Law (Miscellaneous) Amendment Bill – Omnibus legislation, which incorporates changes to multiple laws – insisting they were major amendments and ought to stand alone.
But even after he promised KLRC the proposed changes would be effected in the County Governments Act, nothing has been done.And the death of Nyeri Governor Nderitu Gachagua, whohas since been succeeded by his deputy Samuel Wamathai, has exposed the lacuna in the law.
“The law is very silent in the replacement of the DG once the serving one succeeds the governor. In the event that the governor dies or resigns from office, the DG takes over,” explained KLRC Chief Executive Officer (CEO) Joash Dache.
He continued: “Both the County Governments Act, the Election Law and the Constitution do not address the replacement of the DG in the event a vacancy arises. However, the commission sought to address the matter by coming up with proposals that we shared with the AG.”
This means that Nyeri County will remain without a substantive DG after Wamathai was sworn in as new governor on Monday.
The law envisages that in the event a governor dies in office, the DG assumes office as provided for in Article 182 (2) and the serving County Executives, including the County Secretary, cease to hold office.
There is a raging debate on the retention or replacement of Gachagua’s cabinet and county secretary as stipulated in Article 179 of the Constitution.
Senate Majority Leader Kithure Kindiki (Tharaka/Nithi), senators Mutula Kilonzo Jnr (Makueni) and Moses Kajwang (Homa Bay) also concur that there is a gap in law, but differ in the interpretation.
Both Prof Kindiki and Kilonzo Jnr are in agreement that the loophole is deliberate since a governor and his running mate come to office through an elective process, noting that once the DG succeeds the governor, he/she cannot appoint a deputy.
“The transition in the office of the governor is explicit, the deputy takes over for the remainder of the term. Potentially, governors should settle on competent running mates because they are potential governors,” said Kindiki.
He continued: “There is a gap in the office of the DG and this is deliberate. The way the mandate of the DG is crafted in law, it cannot be filled through appointment. That is why the position of the DG cannot be replaced through a by-election.”
Kilonzo Jnr also argued the ticket for governor and running mate is a package and therefore cannot be replaced through appointment.
Kajwang stated a new Constitution is tested through life and death.
“It’s evident that there are many gaps in the Constitution that should be addressed through constitutional amendments and ordinary legislation,” he stated.
Dache suggested the governor can assign one of the executives more responsibility to help as DG.
The defunct Transition Authority (TA) chairman Kinuthia Wamwangi, who midwifed the transition to county governments, maintains the law does not provide for the replacement of a DG.
The same, he says, also applies to the Executive team, which must be vetted afresh if the government does any changes or reshuffles them.
Nyeri Senator Mutahi Kagwe said the AG’s office had issued an advisory opinion to the county to the effect that the current members of the county executive will require no fresh vetting to continue being in office.
However, senators Boni Khalwale (Kakamega) and Kilonzo Jnr disagreed with the reported opinion, saying the Constitution was clear that once a governor dies, the county executive ceases to exist.