By the time publication day comes, what a columnist might say has likely been overtaken by events or by other commentaries. But what happens when a governor is arrested seems too important a constitutional issue to ignore – the more so if that county boss has no deputy.
It is interesting to reflect that one of the Punguza Mizigo proposals was to abolish the position of Deputy Governor.
The functions of deputy governors are not spelled out as clearly as those of the Deputy President. The County Governments Act says that the DG “deputizes” for the governor, while the Constitution says the deputy “acts” as governor when the latter is “absent”.
When talking about the President and the deputy, the Constitution says the DP “acts” as President not only when the President is absent, but when the latter is “temporarily incapacitated” or if the President decides.
You can only deputize for someone who asks you to do so. But you might act as President or governor automatically because the usual officeholder is “absent”.
But what amounts to being “absent”? Is a governor absent because he or she is in Nairobi not in the county? Is a governor under arrest “absent”? Is a governor in hospital, but perfectly able to make decisions, absent? Presumably not. But is the governor in the same hospital bed, but not able to make decisions, absent or present? And with modern communications, a president who is overseas but not out of contact can do many things that he or she could do when in the country. And things that could not physically be done (like signing a Bill) could be delegated to the deputy. Is this absence? A common-sense approach is needed.
SUPPOSE THERE IS NO DEPUTY
No one except the DG may deputize for or act as governor when there is a governor in office.
Many have pointed out that if there is no governor and no DG the county assembly speaker acts as governor. Mostly, they have also commented that a governor who is on bail is still in office, even if unable to attend office. There is no vacancy in the Office of Governor.
And, though judges have said something like “Naturally this prosecution must be treated as a matter of urgency”, Transparency International’s study of corruption cases shows that typically they take five to seven years. We can readily imagine how much ingenuity will be put into delaying the prosecution of such an accused person by their lawyers.
CAN A GOVERNOR BE COMPELLED TO APPOINT A DEPUTY?
Let us assume that not being able to go attend office does not prevent the governor from nominating a deputy. That is itself not an easy question – clearly simply staying away from a building marked “Governor’s Office” is not what the courts mean in their bail conditions.
The Supreme Court issued an advisory opinion on appointing a deputy: The governor must, within 14 days, nominate a person, and the County Assembly must vote on the nomination within 60 days. An effort to get this into an Act has been stuck in Parliament.
Since the Supreme Court has ruled that its advisory opinions must be followed, a court action to compel a governor to take this action ought to succeed – and produce a DG (and therefore someone to deputise).
But the situation is a bit odd; and could be thwarted by the governor’s choosing some totally inappropriate candidate, or by the county assembly refusing to approve a suitable one.
Even if a deputy was appointed this way, there is still a governor, so the deputy could only “deputize”, not “act” as governor, with almost full powers.
However, a court might say “In practical terms the governor is absent, though still in office. So the deputy is acting governor”.
REMOVAL?
Impeachment by the county assembly before the Senate to remove Sonko on corruption grounds would undoubtedly lead to a court challenge relying on “innocent until proved guilty”.
However, the Constitution indicates that complete proof of guilt of a crime is not required: “serious reasons for believing that the county governor has committed a crime …” are enough. But the courts and the Constitution insist that a charge does not amount to guilt. How could they allow the DPP’ decision to prosecute to decide if a person is sacked?
There might be other grounds (“abuse of office or gross misconduct” are not the same as crime). Refusing to appoint a deputy and leaving the county in a mess might be enough.
Kenyans will remember that two attempts to impeach the Governor of Embu failed because the courts found that procedures had not been followed. And even a smooth process could take some time. And the inevitable court challenge would add more. Governor Martin Wambora went through two levels of court for each of his impeachments.
Interestingly, the Constitution (Article 181) did not say that the removal of a governor was necessarily by the county assembly. Parliament could have passed a law providing a national not a county process to remove governors, rather like that for removing commissioners, perhaps involving the Senate. But they have not done so, preferring removal of governors by impeachment only. To pass such a law now would need public participation, and therefore time, and would go through both Houses of Parliament
Two Articles in the Constitution allow national government intervention in the county. Article 192 is a disciplinary measure. The President may appoint an independent commission of inquiry to look into allegations against a county government. The President cannot act alone.
If the commission recommends suspension of the county government and the President agrees, (he did not on Makueni) the whole government, including the county assembly, is suspended and after 90 days there will be elections for governor and assembly, unless the Senate ends the suspension. You might view this as punishing the assembly for not impeaching the governor.
Article 190 is about “support for a county government”. Parliament is supposed to have passed law to allow the national government to take over functions that a county is unable to perform. It does not seem to have been designed for the current situation. And Parliament has considered limited it to a county failing to have a proper finance system.
There is a well-established – but rarely used – principle of law that something that would otherwise be an illegality may be allowed if it is necessary to avert a very grave situation. It is most often used in a criminal law situation (to save the life of person A the life of person B may have to be sacrificed). For an illegality to be condoned by the courts as a necessity it must depart as little as possible from the legal route, and be for as short a time as possible. It has been occasionally recognised in Kenyan courts.
A court sacking a governor on the basis of necessity would go too far. But might the court say “we can solve the problem without departing too much from the law by declaring that the Speaker should act, even if there is still technically a governor”?
But usually, if the Speaker acts as governor, there must be a by-election for governor within two months. For the court to order this would amount to sacking the governor. So could the “acting” by the Speaker be extended? And would this necessitate the Speaker giving up her (in this case) seat as Speaker?
Clearly the constitution-makers thought the two jobs were incompatible for any long period. Yet, if the Vice President of the US can be the President of the Senate, cannot the Speaker of a county assembly be also the acting governor? But there are clearly problems about this. The past efforts of the county assembly to dismiss the Speaker only add to the complications.
Finally, if there is to be an application to court, concrete suggestions must be made, supported by legal argument. Courts don’t just invent solutions.