Laws are made by human beings who are not perfect. The ultimate end of law is justice, and justice is a must for peace to be sustainable. As societies become increasingly complex, governments are tempted to regulate every single challenge, known and unknown.
This approach is based on a fallacy, a false premise that the more we regulate, the more honesty we beget, the better society is left and the more order we will achieve. Far from that being the case, it is precisely the excess of regulation that undermines order, honesty, justice and eventually, peace.
Melvin, a young commerce student, brought to my attention that a bizarre regulation in Nairobi County indicates that if one’s dog barks and the sound can be heard a certain number of metres away, one is eligible for a fine. Yet this animal’s bark could be one’s salvation from burglars and attackers. He wondered how legislators could go to such level of detail and forget to say how a deputy governor should be replaced.
DEPUTY GOVERNOR REPLACEMENT NOT A THEORY
The replacement of a deputy governor stopped being theoretical in February 2015, when the Speaker of the Embu County Assembly filed a reference that sought an advisory opinion as per Article 163(6) of the Constitution.
The advisory opinion was read last week and in it, three questions were posed to the court:
First, the procedure for taking the oath of office as per the Constitution by a deputy governor who becomes governor when the original governor is impeached, dies or resigns. Second, the criteria for filling the vacancy occurring in the office of the deputy governor, where the original deputy governor becomes governor, after similar impeachment, death or resignation of the elected county governor. Third, the timeline within which the deputy governor taking over the office of governor should take up office.
Melissa Mungai is a brilliant fourth-year law student and the chair of the Law Review editorial board. We were speaking about this matter with Cecil Abungu, another constitutionalist in the making. Melissa immediately brought up Alexander Hamilton’s views on impeachment. Hamilton, one of the founding fathers of the United States of America and a faithful constitutionalist, warned that a suitable court for the trial of impeachments should be that one in which, “the subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
It is very easy for impeachment courts to go political, and serve petty and short-sighted political interests, forgetting justice. In the Martin Wambora case, the Supreme Court had to create new law in order to fill in the lacuna present in the Constitution and the attendant legislation on replacing a deputy governor after a vote of no confidence has been successfully applied against a governor.
As the text of the law stood, in the event of an impeachment or death of a governor, the deputy governor automatically takes over as the new governor. However, the law is silent on the procedures to be followed when it comes to filling a consequently vacant position of deputy governor. Article 182(2) of the Constitution and Section 33 of the County Government Act do not contemplate a separate election in these circumstances. There is only mention of an election in cases where the deputy governor is unable to perform the impeached governor’s functions.
PRUDENTLY EXPANDING LAWS
The Supreme Court held that a pragmatic and holistic interpretation of the law was needed. In part, they came to the conclusion that the procedure for replacing the deputy president outlined in Article 149 should be adopted: “From the signal embodied in Article 149 of the Constitution, and in the absence of any applicable legislative provision, we hold that, where a vacancy occurs in the Office of the Deputy County Governor, the Governor shall within fourteen days, nominate a person to fill such vacancy. The County Assembly shall vote on the nomination within sixty days after receiving it”.
The court looked at the experiences of three countries: Nigeria and South Africa, which only fill this position by electing deputy premiers in each province’s house; and the United States, where there is a split, as 18 states have separately elected lieutenant governors (on a different ballot from that of governor).
It appears that the compelling reason for which the court opted for a nomination instead of a separate election was the fact that the offices of the governor and the deputy governor is supposed to guarantee the prudent management of county resources. It is clear that a prolonged vacancy in the office of a governor denies the people the right to equitable sharing of national and local resources, and this would be contrary to the terms of Article 174 (g) of the Constitution.
One of the aims of equitable sharing of resources is to achieve what Mutakha Kangu calls financial autonomy, which is in two-respects: access to sufficient revenue raised nationally and the ability for county governments to determine their own budgets and budgetary priorities.
ELECTED VS APPOINTED
One important hurdle the court avoided is the fact that the role of the deputy governor is an elected position, not an appointed one. It seems an abuse of power to replace an elected official by a chosen one.
But again, a deputy governor is not elected alone but on a two-candidate ticket. For example, Nairobians did not vote for Sonko; they voted for Sonko-na-Igathe. And without Igathe, Sonko might not have made it. Could the courts be subverting the will of the people by allowing Sonko to pick a successor to Igathe?
The decision conceded that the offices of the governor and the deputy governor are ‘intimately linked’ in the following ways. First, there is no direct (separate) election for the deputy governor and as such the election of the deputy governor is dependent upon that of the governor. Second, the deputy governor is accorded priority by the Constitution as the suitable candidate to fill in a vacancy in the office of the governor, whether temporarily or permanently.
Often times courts are forced to fill in the gaps in law and they do so cautiously so as not to upset the “political question” doctrine. Would the people prefer to directly elect a deputy governor? Is there sufficient public trust in the county assembly to approve the nominated deputy governor? Will the frail relationship between the county assembly and the office of the governor jeopardise the nomination process?
Melissa agrees that these were the controversial grey areas that the court did not and will not dare to get involved in, even in the foreseeable future. They instead set a good precedent “in the absence of any applicable legislation”. Parliament will need to fill this gap by enacting legislation to deal with this matter in a clear and consistent way.
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi