COUNTY GOVERNMENT: CAN A GOVERNOR APPOINT A NEW DEPUTY GOVERNOR?

On 12/1/2017 the news and social media was buzzing with news of resignation of Deputy Governor of Nairobi County, Polycarp Igathe. It was a shocker as it is quite rare for government officials especially elected government officials to resign. The letter of resignation was circulated on the media was to take effect on 31st January 2018 at 1 pm.

The legal analysts are divided on what should happen next. Some are of the view that the Governor is not able or required to fill the post. The basis of this argument is that the Deputy Governor is elected together with the Governor. Also there is no legal frame work to allow the Governor to replace the Deputy Governor. Others are of the view that the Governor can appoint a new Deputy Governor. Janet Katisya of Lawquery highlights the laws that govern this to give solution to the current stalemate.

What is the role of a Deputy Governor?

A Deputy Governor is nominated by the governor to be his running mate during elections. His name is on the ballot paper together with the Governor. He is not elected as an individual.

The role of the Deputy Governor is primarily to take over the role of the Governor in case his seat comes vacant or the Governor is absent from the County. This has happened in Nyeri County after the death of the Governor in 2018.  The Deputy Governor is required to have qualifications equal those of a Governor. (Article 180(5) Constitution of Kenya)

The Constitution in Article 179 describes the County Executive Committee as the holder of the executive authority in the County comprising of;

  1. The County Governor  as the Chief Executive
  2. The Deputy Governor as the Deputy Chief Executive
  3. Members appointed by the governor with the approval of the County Assembly

Can the Deputy Governor be Replaced? How

The Constitution is clear in Article 180 on how the Deputy Governor is appointed. However, the replacement when the seat is vacant is not clear. The law cannot have a lacuna. From the foregoing, the Deputy Governor is not merely the running mate of the Governor but is also the Deputy Chief Executive of the County Executive Committee.

The question arises, is the County Executive Committee correctly and legally constituted without a Deputy Governor?

In the case of the President and Deputy President the Constitution is clear in Article 149 which provides;

149.Vacancy in the office of Deputy President;   (1) Within fourteen days after a vacancy in the office of Deputy President arises, the President shall nominate a person to fill the vacancy, and the National Assembly shall vote on the nomination within sixty days after receiving it.
  

Our conclusion on examining the Constitutional provisions above is that;

  1. The Governor nominates the Deputy Governor before elections
  2. The Deputy Governor must have same qualifications as a Governor
  3. The Deputy Governor is a member of the County Executive Committee
  4. The   Deputy Governor is the Deputy Chief executive of the County

Our view on examining the appointment of the Deputy Governor and looking at the law on replacement of the Deputy Governor, there is no room for a by-election to replace the Deputy Governor’s post.  The Governor may replace the Deputy Governor by APPOINTMENT and to be approved by the Members of County Assembly.

From the structure of the County Government it is not expected that the County should operate without a Deputy Governor. In Nyeri County after the death of the Governor and appointment of  Deputy Governor as Governor, a Deputy Governor was not appointed and the office remains vacant. Although the Deputy Governor is not elected he still has his role in the Devolution structure to ensure continuity in operation of the County when the Governor is absent.

LawQuery Team

info@lawquery.co.ke

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