Nairobi County Ex-Deputy Governor Mr. Polycarp IGATHE EARLIER today surprisingly resigned from his office citing frustrations and his inability to “earn the Governor’ Sonko’s trust.”
As a result, many questions have been asked of me as to what happens where a Deputy Governor resigns.
Both the Constitution and the County Government Act, No. 17 of 2012 (the Act), seem to be silent on the effect of resignation of the Deputy Governor.
The closest that a vacancy of the DG is referred to is under Section 33(10) of the Act which is to the effect that “a vacancy in the office of the governor or deputy governor arising under this section shall be filled in the manner provided for by Article 182 of the Constitution.”
The said Section 33 of the Act deals with the removal of the Governor (as contemplated under Article 181 of the Constitution) but covers the Deputy Governor at the said subsection (10).
Article 182 of the Constitution provides for the circumstances under which the office of the Governor may become vacant and what happens as a result. It also talks about a situation where BOTH the offices of the Governor and the Deputy Governor fall vacant.
It however DOES NOT address a situation where a vacancy occurs ONLY in the office of the Deputy Governor. This is a clear lacuna in the law in that regard and to that extent.
Article 180 of the Constitution which provides for the election of the Governor and the Deputy Governor may, in my view, be of some help.
Article 180 (5) demands that “each candidate for election as county governor shall nominate a person… as a candidate for deputy governor”. Sub-Article (6) further states that “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 is therefore my view that:
1. The resignation of a Deputy Governor does NOT call for a fresh/ separate/ by-/election for his replacement;
2. The Governor has a leeway to nominate (for appointment) and or to appoint the replacement of the Deputy Governor whose office falls vacant