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”.
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).
