On January 12th 2018, just a day after he had spirited battles with Nairobians online, and just after he impounded cows and asked us what to do with them on Twitter, Polycarp Igathe resigned. He had served as Nairobi’s Deputy Governor for less than six months.
He said, once again on Twitter, “Dear Nairobians, it is with a heavy heart that I resign my seat as elected Deputy Governor of Nairobi City County effective 1pm on 31st Jan 2018. I regret I have failed to earn the trust of the Governor to enable me to drive Admin & Management of the county. Without fear, favour or ill will I step down to avoid abusing or betraying my oath of office to Kenyans, Nairobians and my family. Thank you for the encouraging support given to me so far.”
This brings about questions as to the role of a deputy governor, and the process to replace one when they leave the role for whatever reason. According to the constitution (Cap. 11, Article 180): “Each candidate for election as county governor shall nominate a person who is qualified for nomination for election as county governor as a candidate for deputy governor. The Independent Electoral and Boundaries Commission shall not conduct a separate election for the deputy governor but shall declare the candidate nominated by the person who is elected county governor to have been elected as the deputy governor.”
It goes on to say (Cap 11, Article 182): “(1) The office of the county governor shall become vacant if the holder of the office:
- dies;
- resigns, in writing, addressed to the speaker of the county assembly;
- ceases to be eligible to be elected county governor under Article 180 (2);
- is convicted of an offence punishable by imprisonment for at least twelve months; or
- is removed from office under this Constitution.
(2) If a vacancy occurs in the office of county governor, the deputy county governor shall assume office as county governor for the remainder of the term of the county governor.” The constitution does not specify what happens when the office of the deputy governor falls vacant.
The County Governments Act (2012) Section 32 that designates the functions of a deputy county governor is also vague, and does not state what should happen in case this office falls vacant. It says: “The deputy governor shall take and subscribe to the oath or affirmation as set out in the Schedule to this Act before assuming office. The deputy governor shall deputize for the governor in the execution of the governor’s functions. The governor may assign the deputy governor any other responsibility or portfolio as a member of the county executive committee. When acting in office as contemplated in Article 179 (5) of the Constitution, the deputy governor shall not exercise any powers of the governor, to nominate, appoint or dismiss, that are assigned to the governor under the Constitution or other written law. The governor shall not delegate to the deputy governor any of the functions referred to in subsection (4).”
The Election Laws Act (2011) Section 18 only anticipates the change of a deputy county governor candidate, as is expected. It says: “A county governor candidate or a political party shall not at any time change the person nominated as a deputy county governor candidate after the nomination of that person has been received by the Commission: Provided that in the event of death, resignation or incapacity of the nominated candidate or of the violation of the electoral code of conduct by the nominated candidate, the political party may substitute its candidate before the date of presentation of nomination papers to the Commission.”
We are in uncharted waters. We have two options – Mike Sonko could either appoint a new deputy, or he could complete his term without one. The law leaves the role of a deputy county governor vague. They appear to serve at the pleasure of the county governor, otherwise the process of replacing one would have been specified. It is unclear the pool available to Mike Sonko from which to select a deputy, which makes this option politically volatile, as it could be used to reward cronies. This option may be untenable, though, as neither the Constitution, County Government Act, nor the Election Laws Act give a county governor the power to do appoint a new deputy. This would likely be the subject of a matter in court, after which we would thankfully have jurisprudence on the issue.
He could also govern until 2022 without a deputy governor, something he has suggested he will do. He has said that he is not ready for dialogue with his former deputy, and that he will consult the electorate and work with other leaders, both from Jubilee and other parties. He also stated that he will work with other elected leaders and professionals to ensure service delivery in Nairobi County.
Now that this has happened, we need to amend the County Governments Act (and perhaps the Election Laws Act) to clarify what should happen when the office of a deputy county governor falls vacant. Until then, Nairobi will likely remain without one.