The Senate has now cleared the way for county governors to appoint their deputies should a vacancy arise.
This follows the passage of the County Government (Amendment) Bill 2017 by the House.
The bill is sponsored by Elgeyo-Marakwet Senator Kipchumba Murkomen, who is also the leader of majority in the Senate.
It provides that a governor nominates another deputy within 14 days of the occurrence of a vacancy and forwards the name to the County Assembly for approve within 60 days.
The bill will now be taken to the National Assembly for concurrence before the president signs it into law.
Senators will, however, not be part to the process. The bill seeks to cure the situations currently faced by Nairobi and Nyeri counties that have no deputy governors.
In Nyeri, Deputy Governor Mutahi Kahiga took over as governor, following the death of his boss, Dr Gakuru Wahome, in a grisly road accident on November 7, 2017.
In Nairobi, Deputy Governor Polycarp Igathe resigned in January this year on grounds he ‘failed to earn the trust’ of Governor Mike Sonko.
With a lacuna in the Constitution, Senators have been scratching their heads over how best to deal with the matter, until the Supreme Court, in its advisory opinion, ruled that a governor can nominate another deputy within 14 days after a vacancy has arisen.
Though the Supreme Court made the decision on March 9, the two governors are yet to nominate their deputies 22 days later.
The drafters of the Constitution did not envisage a vacancy upon the death, impeachment or resignation of deputy governors.
Until the Supreme Court ruling, the Senate was exploring a temporary measure to cure the situation.
A suggestion by Makueni Senator Mutula Kilonzo Junior to have governors designate a county executive committee member had been accepted and approved by the Senate’s legal affairs committee.
“We are looking for a temporary solution. Unless we amend the Constitution, the substantive governor should be able to nominate any of the CECs as designate deputy governor from time to time,” Mr Kilonzo said at one of the committee’s meetings.
It was also agreed that should a governor die before taking the oath of office, the deputy governor would act for 60 days before a by-election is held.
The country almost faced the circumstances now in Nairobi and Nyeri counties back in 2005 when President Mwai Kibaki fired his entire Cabinet after a proposed new constitution was rejected at a referendum by a 57 per cent vote.
The Attorney-General at the time, Mr Amos Wako, said he advised President Kibaki against sacking his Vice President Moody Awori.
“The president listened to me. It would have been a crisis if a vacancy had occurred in the Office of the President with no VP or any member of the Cabinet to succeed him,” Mr Wako said.