The ongoing court proceedings involving impeached Deputy President Rigathi Gachagua underline a bigger national issue - that the country is currently without a second in command.
President William Ruto has lined up Interior Cabinet Secretary Kithure Kindiki to replace Gachagua as DP, with 236 members of the National Assembly who voted yes to the nomination. However, the President was dealt a blow after the courts intervened , suspending Kindiki from assuming office until Gachagua's case challenging his ouster is heard and determined.
The messy ping-pong battle between Gachagua and the state almost promises to drag on, with the ousted DPs lawyer Paul Muite vowing on Wednesday, October 23 that he would advise his client to appeal the High Court decision allowing the three-judge bench empaneled by Deputy Chief Justice Philomena Mwilu to hear the case against the ousted second in command.
While Gachagua faces an impossible task in retaining his seat as Deputy President, the bigger picture is the potential crisis that is looming with all the uncertainty regarding the Deputy President's seat.
Does Kenya have a Deputy President? Technically, the country does not have a Deputy President as of October 24 since the Senate voted to remove Gachagua from his office through impeachment. Gachagua effectively ceased to be the Deputy President via impeachment.
Despite challenging the Senate's move to impeach him in court, Gachagua stands to remain impeached since the Judiciary lacks the authority to overturn a decision made by the Senate. The High Court can only address issues of unfairness during the Senate trial, which is Gachagua's strongest argument anyway.
According to Article 149 of the Kenyan Constitution, "the President shall nominate a person to fill the vacancy within fourteen days after a vacancy in the Office of Deputy President arises and the National Assembly shall vote on the nomination within 60 days after receiving it."
Since the court issued orders stopping Kindiki from being sworn into office, it means Kenyans are currently not represented in the second highest office in the land.
Further, questions have been raised on the legality of Kindiki's nomination, since the law stipulates that a person is not qualified for nomination as a presidential candidate if the person owes allegiance to a foreign state, is a public officer, or is acting in any State or other public office. The second clause, however, does not apply to a President, a Deputy President or a Member of Parliament.
Therefore, Kindiki would need to resign as Interior CS to be eligible to hold office as the Deputy President.
The IEBC equation: Questions have also been raised on how a new Deputy President can assume office without the input of the Independent Electoral and Boundaries Commission. Since the constitution assigns the technical competency of determining the eligibility of elective officers to the IEBC, the commission plays a crucial role in determining who holds public office.
However, there is a loophole since neither Article 149 (1) nor any other provision talks about the role of IEBC in dealing with the replacement of a deputy president when the office becomes vacant mid-term.
With all these factors considered, it is extremely difficult to determine the fate of the Deputy President's seat in the near future.
