On Monday, May 16, Azimio la Umoja-One Kenya presidential candidate Raila Odinga announced that in his government (should he win the election) Martha Karua will serve as Deputy President and Cabinet Secretary (CS) simultaneously.
Odinga said Karua will hold the Justice and Constitutional Affairs CS post to ensure that Kenya’s constitutional shortcomings are addressed.
In the first administration, post-promulgation of the 2010 Constitution, no elected member of the Executive or Legislature held a CS post.
Three MPs (Joseph Nkaissery, Dan Kazungu and Charles Keter), who happened to transition from the Legislature to the Executive, were forced to resign from the elective seats that they were holding.
Joseph Nkaissery resigned as Kajiado North MP on December 24, 2014 to take up the position of Interior CS.
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Dan Kazungu resigned as Malindi MP on December 17, 2015 to take up the position of Mining CS.
Charles Keter, who was the Senator of Kericho County, resigned from the elective seat on December 17, 2015 to take up a new role as Petroleum CS.
Should Raila Odinga win the presidency, then will it be constitutional to have Martha Karua serving as both deputy president and Justice CS?
Article 152, Section 3 of the Constitution says a Cabinet Secretary shall not be a Member of Parliament (MP, Speaker or Senator).
In case Raila wins the presidency, Karua (the deputy president) won’t be a Member of Parliament (Legislature), but a member of the Executive. So, should she be appointed CS for Justice, then Raila Odinga won’t have breached Article 152 of the Constitution, legal experts argue.
However, Article 147 (Section 4) of the Constitution bars the deputy president from holding any other State or public office.
Additionally, Articles 152 and 260 distinguish the Office of the Deputy President and the Cabinet Secretary (CS) as distinct Cabinet and State offices.
Constitutional lawyer Bobby Mkangi says Raila Odinga’s decision to pick Karua (the deputy president in case of victory) for CS job will likely be challenged in court.
“The Constitution envisages that the DP cannot hold two positions,” Mkangi told The Standard.
“Whereas the president may assign roles to the DP, he or she may not assign the deputy president CS duties because that would amount to holding two State office jobs at the same time,” he added.
Former Law Society of Kenya (LSK) president Nelson Havi reiterated Mkangi’s sentiments, saying the law, as is, does not allow the DP to hold a parallel State office.
"If the deputy president is to hold any other office, it cannot be a State office, but a delegated function,” said Havi.
Constitutional lawyer Ben Sihanya, however, is of the contrary opinion. He says the president has the powers to assign his or her deputy any roles, CS duties included.
"The deputy president can actually be assigned a docket or a portfolio by the Head of State. Both legislation and the Constitution allows the president to do that,” Sihanya said.
The big question, however, is will Karua (a sitting deputy president), if nominated as CS for Justice, be vetted by Parliament as the law demands?
Cabinet Secretaries are usually vetted by the Committee on Appointments.
The committee consists of the Speaker as a chairperson, the Deputy Speaker, the Leader of the Majority Party, the Leader of the Minority party, the Deputy Leader of the Majority Party, the Deputy Leader of the Minority party and not more than 22 other members nominated by the House Business Committee, on the basis of proportional Party Membership in the House.
The Committee on Appointments is appointed within seven days on assembly of a new House.
Prof. Sihanya is of the view that Karua can ascend to the CS position without being vetted by the Committee on Appointments.
In her acceptance speech on Monday, Karua said Odinga had already outlined her roles as deputy president should they secure victory on August 9.
“Baba (Raila) has allocated me duties in advance, and I want to confirm that I am ready, able and willing for those duties, I will not let you down. I will be steadfast, diligent in pursuit of our shared dreams and pursuits,” said the former Gichugu MP.