Senate Bill will create ‘vice-governor’

Polycarp Igathe, who is now the Managing Director of Equity's Kenya operations. PHOTO | EVANS HABIL | NATION MEDIA GROUP

What you need to know:

  • Further, the Senate must ensure public participation in the enactment of the required law.
  • Power should be vested in the voters in the affected county and not just the governor.

A constitutional flaw in the replacement of a deputy governor came to the fore upon the sudden death of then-Nyeri Governor Wahome Gakuru last November with the legal lacuna receiving more attention following the recent abrupt shock resignation of Polycarp Igathe as Nairobi Governor Mike Sonko’s deputy.

It seems that a state of insomnia engulfed the nation, more so the Senate, when the first governor of Nyeri, Nderitu Gachagua, died in February last year, paving the way for his deputy, Samwel Wamathai, to assume the seat.

GAP

The country lost a big opportunity to seal the constitutional gap by Parliament enacting a law to deal with replacement of DGs.

But that power should be vested in the voters in the affected county and not just the governor — as proposed by Senate Majority Leader and Elgeyo-Marakwet Senator Kipchumba Murkomen in his bill.

Senators ought to take care that the rush to enact the draft law (as if we had not been forewarned!) is likely to introduce an amendment(s) that, in effect, undermine very important clauses in the Constitution and subvert the will of the electorate as well as dilute the position of the DG to a mere ‘vice-governor’.

Article 179(4) of the Constitution states that the governor and DG are the chief- and deputy executive officer, respectively, of the particular county. This implies that the DG is a substantial player in the running of the county government.

The holder of the position would also act as the governor when the county boss is away, as stipulated in Sub-section 5 of the article.

MANDATE

The DG, then, just like the governor, must have the mandate of the electorate.
That is the reason Article 180(6) of the Constitution says the electoral commission shall not conduct a separate election for the DG but declare the candidate nominated by the person who becomes the governor (as running mate during the election) to have been duly elected for the position.

It is my strong belief that Kenyans wanted to move away from the era when the president of the republic had absolute, unquestionable individual powers to appoint the vice-president.

Such an appointment may have been fit for the VP but not the deputy president (which we have today). The latter is a running mate, vetted and co-elected with the president. A VP was a direct subject of the president, in office at the whims and will of the head of state and could be sacked through a one o’clock news item — as used to happen to other state officers.

But Kenyans said ‘No’ to this. They wanted a principal assistant to the president that they could ‘elect’, and who would have powers and tenure of office and immunity from the president should they fall out. That is the reason we have a president and a DP.

The same thinking was borrowed for the counties, so that they have a governor and a DG. As with the presidency, the duo is a joint ticket on the ballot paper.
RUNNING MATE
In an ethnically polarised country as ours, the consideration for a running mate — both at the presidency and county level — is a delicate balancing act that attempts to guarantee that the interest of all residents is taken care of. In most cases, if not all, the running mate represents the interest of some constituency.

In the prevailing circumstances, it is hard to envisage a situation where a presidential candidate picks a running mate from his or her community or region.

Similarly, the election of a gubernatorial candidate is informed, fundamentally and principally, by the running mate and the interest group(s) the latter represents.

Further, the Senate must ensure public participation in the enactment of the required law.

Forget the proposal that the deputy so selected by the governor should be vetted by the county assembly. It is an open secret that some of the assemblies are at the beck and call of the governor!

The Senate should also clearly define the roles of the DG, so that we don’t ever again come to the situation obtaining in many counties, where bad blood and infighting reign supreme.

While announcing his resignation, Mr Igathe cited lack of trust by the governor to carry out his administrative duties as his major reason for quitting.

If passed as is, the ‘Murkomen Bill’ will subvert the will of the people should the office of the DG fall vacant. The governor could select as a replacement a person who may not necessarily represent the interests of the people but the county boss’s.

Mr Lotee, the first deputy governor of West Pokot County, is a PhD student in leadership and governance. [email protected].