Until Parliament decides, Nairobi should remain 'deputyless' after Polycarp Igathe's exit

Monday January 15 2018

By LUIS FRANCESCHI
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Like a nagging mother-in-law, we knew that this wedding was going to be a short-lived one. Everybody had the feeling that the marriage Sonko-Igathe had been forced.

When Nairobi’s Deputy Governor Polycarp Igathe’s resignation letter went viral, Ivy Manyasi asked me, “Who fooled who?” What will Sonko do now? What about the voters?

As soon as Igathe announced his resignation, everybody wondered, who will replace him? Would our governor have been elected without Igathe’s name on the ballot?

THE POLYSUCCESSOR

The legal question evoked by the resignation of Igathe is similar to the one raised after the death of Nyeri governor Wahome Gakuru.

Essentially, the question boils down to what the county governor’s legal capacity is, when a vacancy arises in the office of a deputy governor.

There are three laws involved in this matter: the Constitution, the County Governments Act and the Elections Law.

None of them envisages the replacement of a deputy governor following his removal, death, and resignation or in the event of his or her assumption of the governor’s office as foreseen in article 182 of the Constitution.

After looking for an answer in the law, lawyers usually look for jurisprudence on this matter. Sadly, there is none. There has been no jurisprudential response that could fill the legislative void.

THE PROPOSALS

There are two especially clamorous legal opinions flooding the scene, attempting to cure the law of its lacuna.

The first is the proposal that the county governor (including the acting county governor as per article 182) appoints the next deputy governor. The selection could be limited to current county executives or unlimited.

The second is that the county governor serve the remainder of his term without a deputy.

Despite the charm of the first proposal, it is legally impossible to sustain it without eliciting ‘ultra vires’ (beyond the powers, in excess of granted powers) calls. This means that if a governor appoints a deputy governor, he or she would be acting in excess of the powers granted to a governor by either the law or the Constitution.

The Constitution envisages that the electorate votes in a package rather than an individual governor. Article 180(6) of the Constitution unequivocally states that the deputy governor is deemed elected by virtue of the election of the county governor, making unnecessary a second election for deputy governor.

Electoral power hence grants the deputy governor his or her mandate as much as it does the county governor. Therefore, we should not assume that a county governor can appoint a deputy governor.

STATUS QUO

Consequently, the most palatable solution seems to be that the governor serves the remainder of his term without the benefit of a deputy governor, as horrible as this may sound for such a complex city as Nairobi.

It may be prudent to have the office of the Attorney-General draft proposals for amendments to the electoral laws and/or the County Governments Act foreseeing a legally sound solution to a vacancy in the office of the deputy governor.

The final say will be in the hands of Parliament, and until then we have no choice but to remain a ‘deputyless’ Nairobi.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi