Constitutional law and the Deputy President replacement process

The argument that Professor Kindiki cannot be Deputy President because he did not resign from the Cabinet three months before his appointment, that he is not a member of UDA, or that the IEBC must first nominate him are tired arguments that contradict the clear text of the 2010 constitutional democracy.

The constitution envisions two distinct paths to assuming the Office of Deputy President, and these should not be conflated. While one path involves election, the Kenyan constitution does not require an election upon removal by impeachment; instead, it empowers the relevant offices to choose replacements for the Deputy President.

After a nominee is proposed—not as a candidate for election—and subsequently voted on by the National Assembly, the only requirement before Professor Kindiki can begin executing his duties is the official ceremony for taking the oath of allegiance and the prescribed oath of affirmation outlined in the Third Schedule of the Constitution.

The first path to becoming Deputy President is through regular general elections, where one must be a candidate. This process is governed by various requirements, including the necessity of resigning 90 days before the general election unless one is a member of Parliament or the presidency, followed by a popular vote in the election.

The second path to becoming Deputy President is detailed in Article 149 of the Constitution, which allows for a replacement following a vacancy in the Office of Deputy President. This power is granted to the President to nominate a replacement.

The Constitution recognizes these two distinct paths and prescribes various processes for each. The election path is guided by the Elections Act, while the second path allows the President to directly nominate a replacement for the office—not as a candidate for election by voters.

Notably, Article 149(2) distinguishes between these paths by acknowledging that “If a person assumes office as Deputy President under clause (1), then, for the purposes of Article 148(8), the person shall be deemed...”. Clause (1) refers specifically to the nomination by the President upon the occurrence of a vacancy, which must be done within 14 days. The nominee is not a candidate for election but a nominee of the President to fill the vacancy, subject to approval by the National Assembly.

This is why Article 148(8) states that for those appointed by the President, their terms shall be deemed to have begun at the start of the term. The legal implication of this is that the law assumes they were elected from the beginning of the term, even though they were not; hence, they are deemed so.

Article 148(3), which requires the IEBC to declare the elected candidate as Deputy President, is irrelevant in this case because there is no election or contest to determine who becomes Deputy President. The individual assuming the office is a direct appointment by the President to fill a vacancy, not a candidate for election.

The path to election prescribed by the IEBC uses the term "Deputy President-elect," which cannot apply in the case of a direct nomination by the President. Before someone becomes Deputy President-elect, the section refers to them as a Deputy President Candidate nominee; this should not be confused with the Deputy President nominee who fills the vacancy, as they are not candidates.

Thus, the IEBC and elections only become relevant when the Speaker takes over in the absence of both the President and Deputy President, which is not the current situation. Therefore, the absence of IEBC commissioners is irrelevant to this transition.

Article 147(4) states that the Deputy President shall not hold any other state or public office. This applies upon assuming the Office of Deputy President after taking the prescribed oath. Article 149 of the Constitution, titled "Vacancy in the Office of Deputy President," outlines how this vacancy is to be filled. Thus, the requirement that one cannot hold a state or public office logically follows only after one has assumed the Office of Deputy President as a replacement, not beforehand. In a general election, there is a requirement to resign from any public or state office.

The Constitution specifies in Article 149 that the President is to nominate a Deputy President within seven days of a vacancy. This logically means that whoever is nominated within this timeframe cannot meet the requirement of resigning three months before an election; otherwise, the Constitution would contradict itself.

The only "official ceremony" required by the Constitution is that any President must take the oath of office.

In conclusion, the qualifications for Deputy President are similar to those for the President and mirror those of a member of Parliament. Article 2 of the Constitution establishes its supremacy and binds all persons and state organs. This means that when the President exercises his power to nominate a Deputy President, he must ensure that the nominee meets the criteria set out in the Constitution, which are essentially the qualifications required for a member of Parliament.

Indeed, Professor Kindiki meets these qualifications. We must stop misinterpreting the Constitution with erroneous readings. As John Adams said, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Dr Duncan Ojwang, Constitutional and Human Rights Lawyer.