No need to elect deputy governor when there is a vacancy: Senate

Senate Justice and Legal Affairs Committee chairman Hillary Sigei. [Moses Omusula, Standard]

The Senate Justice and Legal Affairs Committee has recommended the rejection of a petition filed in the Senate seeking to have the deputy president and deputy governors elected directly whenever vacancies occur in those positions.

Committee chairman Hillary Sigei said the constitution anticipated vacancies would arise in the positions of the DP and DG and came up with elaborate mechanisms on how they would be filled, including the approval of the nominee by the National Assembly or the respective county assembly.

Senator Sigei said in approving such a nominee, the National Assembly and county assembly exercise their delegated powers under Article 1 of the Constitution, thereby ensuring the legitimacy of the officeholders.

“The existing process ensures continuity in service delivery, encourages economic and administrative stability, and mirrors best practice in comparative jurisdictions, therefore there is no need for direct election of a DP and DG in case of a vacancy,” said Sigei. Taratisio Ireri filed a petition before the Senate seeking support for an amendment to the constitution.

The proposed amendment aims to have the Deputy President and Deputy Governors elected directly whenever those positions become vacant. It also calls for the appointment of someone to act in those positions pending the holding of elections.

Ireri argued that Article 149(1) of the constitution shifts the power of electing a Deputy President from the people to a person and eventually an endorsement by the National Assembly, which he deems contradictory and unconstitutional.

He further argued that a dangerous precedent has been set in four counties, namely Wajir, Kiambu, Nyeri, and Nairobi, where deputy governors assumed offices of the governor and appointed deputy governors who were never exposed to the electoral process.

“This is as a result of Article 182 of the constitution on the vacancy in the office of the County Governor and Article 182(4) which permits the Speaker of a County Assembly to act as the governor in cases where the deputy governor cannot assume the office.

"This creates a situation where the office of the governor is held by a person not elected by the people and is therefore unconstitutional,” said Ireri. 

The petitioner had requested the Senate to amend the constitution by introducing sections of the law that will provide for a by-election of the deputy president and deputy governor after the assumption of the presidency by the elected deputy president and after the ascendency of the elected deputy governor.

He sought to have the Senate amend the relevant law to grant the president the power to appoint a Cabinet Secretary in an acting capacity as a deputy president for six months, within which an election for a substantive deputy president shall have been conducted.

In his petition, Ireri wants the Senate to amend relevant laws to grant the governor the power and authority to appoint a county secretary in an acting capacity as a deputy governor for six months, within which an election for a substantive deputy governor shall have been done. 

“The Senate should also amend the Elections Act, 2011, the Independent Electoral and Boundaries Commission Act, 2012, the County Government Act, 2012 and any other law touching on the electoral process to be in line with the amended constitution,”  said Ireri. 

The Katiba Institute, in its submission to the Senate Justice and Legal Affairs Committee concerning the petition, said the appointment of the deputy president is not unconstitutional, considering the nature of the election which is on a joint ticket with the presidency. 

Katiba Institute highlighted the pragmatism of the candidates selecting their running mates to have an individual they can work with harmoniously, as opposed to an individual imposed on them if the deputy offices have separate elections as proposed in the petition. 

“There is an assumption people are exercising their power through elected representatives when an appointment is subjected to approval by Parliament,” Katiba Institute said. 

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