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Amend the law to pave way for gubernatorial by-elections

By ELIUD OWALO | November 19th 2017 at 12:00:00 GMT +0300

Article 180 of the Constitution variously provides for the election of the governor and deputy governor on a joint ticket. That is to say, a vote for the governor candidate is a vote for the deputy.

Section 18 of the Kenya Election Act 2011 provides further safety nets for the deputy governor who, by virtue of his formal nomination, cannot be replaced except through death, resignation or incapacity of the nominated candidate or in the event that he violates the electoral code of conduct.

Additionally, should the governor die or vacate office for reasons other than election offences, Article 182 (2) allows the deputy governor to assume office as governor for the remainder of the term. Such direct ascension to power by the deputy governor is coveted, making the position enviable because it removes the burden of direct campaigns for the office.

Interestingly, it’s the free ride to power by the deputy governor which is now a source of concern and interest across the country. Many observers and analysts now seem to allude that any ill-intentioned individual could apply mischief to cause a void in the office of the governor for egocentric purposes. The existing legislation creates a lacuna for potential mischief.

Although the procedure of electing the governor and deputy is designed in a comparable way to that of electing the president and deputy president, it’s much easier to apply mischief to cause a vacancy in the office of the governor than to do so to the holder of the office of president. The reason lies on the differentials in the levels of security for the two State offices.

Furthermore, the intensity of political rivalry for the office of governor among clans and ethnic groups is greater at county level and hence can easily bring forth unhealthy competition and insatiable lust for the position.

Arguably, a deputy governor who assumes office by operation of the law without undergoing electoral contest suffers a legitimacy deficit for the simple reason that he has no independent mandate of his own from the people.  In the current scenario, It is also possible that a popular and widely accepted gubernatorial candidate who may have lost the initial contest by a tiny marginal may be the electorates’ preferred replacement in comparison to the deputy governor.

Another gap in the law is that whilst the deputy governor replaces the governor by operation of the law upon the governor’s vacation of office by reasons other than election offence, it’s unfortunate that the existing law is silent on how his office is filled when he moves up the ladder. Such a situation leaves the establishment of the county executive committee incomplete and contrary to Article 179.

The existing laws governing the filling of the office of a governor following a vacancy has the potential of causing unnecessary political wrangling and instability. It can also engender diminished confidence in the office from the public.

In order to cure this constitutional mis-design, it’s necessary to amend the law to enable the people elect a governor or deputy governor whenever their offices become vacant for whatever reason. . This can easily be effected through amendment by parliamentary initiative as per Article 256 of the Constitution.

- The writer is a management consultant

Constitution Kenya Election Act 2011 by-elections governor gakuru
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