• WHETHER THE ASSEMBLY’S COMMITTEE ON APPOINTMENTS HAS THE MANDATE TO VET AND CONSIDER THE SUITABILITY OF NOMINEE FOR APPOINTMENT TO THE OFFICE OF DEPUTY GOVERNOR.
• THE VOTING THRESHOLD OF A MOTION ON THE SUITABILITY OF NOMINEE FOR APPOINTMENT TO THE OFFICE OF DEPUTY GOVERNOR- SIMPLE OR TWO-THIRDS MAJORITY;
You may recall that, on Tuesday 17th April, 2018, the Honourable Member for Ruring’u Ward sought guidance/clarificationfrom the Speaker on the Assembly voting threshold on the suitability of the Nominee for appointment to the Office of the Deputy Governor.The Member was concerned that the Supreme Court advisory opinion reference no. 1 of 2015 was silent on the required threshold to be met by the Assembly in the consideration of a nominationin respect to the Office of Deputy Governor.He opined that the threshold set by the Law in the election of the Speaker and the removal of the Governor from office was set at two-thirds majority of Members of County Assembly and,similarly, the Assembly vote on the suitability of the Office of the Deputy Governor, which is the second most senior office in the County,requires an equally high threshold of at least two-thirds majority of Members of County Assembly.
Secondly, the Honourable Member sought to know whether the Committal of the said Nominee for Deputy Governor to the County Assembly’sCommittee on Appointments for vetting was procedural.
From the issues raised, I deem the following matters as requiring determination –
(i) Whether the assembly’s committee on appointment has the mandate to vet and consider the suitability of Nominee for appointment to the Office of Deputy Governor;
(ii) Whether a motion for the approval of a Deputy Governor’s nomination in the County Assembly should pass by a simple or two-thirds majority.
The Honourable Member raised very pertinent issues which I agree require serious considerations/deliberations before the Assembly can embark on the task of considering the suitability of the Nominee for appointment to the Office of Deputy County Governor. The issues raised herein are a uniquephenomenon in the County Governments and Nyeri County will be pioneering in the appointment of a Deputy Governor following the unfortunate demise of a sitting Governor which occasioned the vacancy in the Deputy Governor’s Position after the Deputy Governor was elevated. It is imperative that the Assemblyobserves the right procedures as provided for by the Constitution of Kenya, other written laws, precedents, customs, procedures and traditions of the Assembly, the National Parliament and legislative assemblies from other jurisdictions. The Assembly is a House of Honour and a House of records and therefore the precedent will guide future Assemblies.
Hon. Members, I would like to proceed to address the issues for determination herein and I will start with the first issue:-
Whether The Assembly’s Committee On Appointments Has The Mandate To Vet And Consider The Suitability Of Nominee For Appointment To The Office Of Deputy Governor;
The vetting of nominees for public appointments is a prerogative of the County Assembly. Section 8(a) of the County Governments Act, 2012 provides that one of the roles of a County Assembly is to “vet and approve nominees for appointment to county public offices as may be provided for in this Act or any other law.”Committees are agents of the Assembly. The principal purpose of Assembly Committees is to perform functions which the County Assembly is not capable of performing at its plenary sittings such as:- summoning of witnesses, sitting as frequently as desirable, applying an environment that can facilitate presentation of details/analysis of evidence, undertaking inspection tours, and forming sub-committees to conduct in-depth inquiry. Unlike in an Assembly plenary, the rules and procedures of committees are more relaxed and members of the public can attend and participate freely. In this case, the final verdict lies with the Assembly and the Committee is expected to table its findings and recommendations to the House for consideration.
The Assembly Committee on Appointments is a Select Committee established pursuant to Standing Order 189 of the County Assembly of Nyeri Standing Orders. Standing Order 189(4) states that “The Committee on Appointments shall consider, for approval by the Assembly, appointments under Articles 179(2) of the Constitution of Kenya 2010 (Members of County Executive Committee).”
Hon. Members, Article 179(2) of the Constitutiongives the composition of the Members of the County Executive Committee, in other words the EXCOM as follows:-
a) The county governor and the deputy county governor; and
b) Members appointed by the county governor, with the approval of the assembly, from among persons who are not members of the assembly.
On the Other hand, Sectoral Committees are established under Standing Order 196 and the subject matters assigned to them are provided for under the first schedule of the Standing Orders. The functions of Sectoral Committees when it comes to vetting is provided for under Standing Order 196(5)(f) which states “to vet and report on all appointments where the Constitution or any law requires the Assembly to approve, except those under Standing Order 183 (Committee on Appointments)”.This provision therefore rules out the option of any sectoral Committee undertaking the vetting exercise of the Nominee for position of Deputy Governor.
We also have ad-hoc Committees which are provided for under Standing Order 199.These are established by way of an Assembly resolution for purposes of enquiring into a matter or matters specified in the resolution. Standing Order 199(4) also provides that “an ad-hoc Committee established under this standing order may not deal with a matter that falls within the mandate of another Committee.”
From the foregoing, it is observed that the vetting of Nominees for constitutional appointments in the County Government and specifically Members provided for under Article 179(2) of the Constitution of Kenya is the preserve of the Assemblies Committee on Appointments. In this regard therefore, the committal of the Nominee for appointment to the Office of Deputy Governor to the Assembly Committee on Appointments was therefore procedural and the matter falls squarely within the mandate of the Committee.
This is also the procedure adopted by the Parliament of Kenya.
Whether a motion for the approval of a Deputy Governor’s nomination in the County Assembly should pass by a simple or two-thirds majority.
From the onset, it must be settled what the term “majority” means in this context. I make reference to the Black’s Law Dictionary Ninth Edition page 1040: “A number that is more than half of a total; a majority always refers to more than half of some defined or assumed set, in parliamentary law, that set may be all members or some subset, such as all members voting on a particular question. A majority without further qualification also means a simple majority.
Article 182(2) of the Constitution states that “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.”
Article 182 (4) and (5) further provides that “if a vacancy occurs in the office of county governor and thatof deputy county governor, or if the deputy county governor is unable toact, the speaker of the county assembly shall act as county governor and thatan election to the office of county governor shall beheld within sixty days after the speaker assumes the office of countygovernor.”
I now make reference to theSupreme Court of Kenya advisory opinion Reference No. 1 of 2015 issued on 9th March, 2018 where the Court made the following determination:-
The Court in paragraph 57 of its advisory states as follows “Article 179(1), (4) and (5) of the Constitution, as read together with Section32 of the County Government Act, the Deputy County Governor is the Deputy Chief Executive of theCounty; is a member of the County Executive Committee; and acts as the County Governor, in theabsence of the Governor. So crucial are these roles to the operations of County Government, it isinconceivable that, constitutionally, they could remain fallow until the next cycle of a general election. Weare, therefore, of the definite opinion that the office of Deputy County Governor ought not to remainvacant until the next general election …. A differing interpretation, in ourperception would be inconsistent with the vital objects of the Constitution, which we have to uphold.”
Further, the Court found it appropriate to draw an analogy with the provisions of the Constitution relating to the office ofDeputy President, as principal assistant to the President. Article 180(5) thus provides:
“Each candidate for election as County Governor shall nominate a person who is qualified fornomination for election as County Governor as a candidate for Deputy Governor.”
Likewise Article 148(1) of the Constitution provides that:“Each candidate in a presidential election shall nominate a person who is qualified fornomination for election as President, as a candidate for Deputy President.”
The Court also noted that the Constitution is explicit on the mode of filling the position of Deputy President. Article 149 provides that “Within fourteen days after a vacancy in the office of Deputy President arises, the Presidentshall nominate a person to fill the vacancy, and the National Assembly shall vote on thenomination within sixty days after receiving it.”
One of the principles of Constitutional interpretation is that “Every provision of this Constitution shall be construed according to the doctrine ofinterpretation that the law is always speaking…” (Article 259) Therefore accordingly, the Court read Article 182 of the Constitution alongside Article 149,which makes provision for the procedure and timelines for filling a vacancy in the Office of the DeputyPresident. The Court therefore held as follows: -“that from the signal embodied in Article 149 of the Constitution, and in the absence of anyapplicable legislative provision, where a vacancy occurs in the Office of the Deputy CountyGovernor, the Governor shall within fourteen days, nominate a person to fill such vacancy. The CountyAssembly shall vote on the nomination within sixty days after receiving it.”
From the above, it is observed that Article 149 “vacancy in the office of Deputy President” with the necessary modifications shall be applicable in this issue. That where a vacancy occurs in the Office of the Deputy CountyGovernor, the Governor shall within fourteen days, nominate a person to fill such vacancy. The CountyAssembly shall vote on the nomination within sixty days after receiving it.
A question then arises as to the mode of voting contemplated by the Constitution and the required threshold.
In August, 2003, a similar unfortunate incident as that of Nyeri befell the Country where we lost a sitting Vice President Hon. Michael KijanaWamalwa, the eighth Vice President of the Republic of Kenya. In the old Constitutional dispensation (1963 Constitution), the appointment of the Vice President was purely a prerogative of the President and the then sitting President H.E. MwaiKibaki appointed Hon. Moody Awori.
However, in the new constitutional dispensation, the 2010 Constitution, requires extensive public participation be conducted in all Constitutional public appointments. Any public appointment requires the consideration of the Assembly, the people’s representatives. The public is also given an opportunity to present any objections it may have on the appointment of a nominee to public office. Appointment to office is only subject to Confirmation by a majority vote of the legislative body.
Standing order 68of our Standing Orders providethat “Unless otherwise provided under the Constitution, a question arising in the County Assembly shall be decided by a majority of the members in the County Assembly present and voting.” This is corroborated by Section 20 of the County Governments Act which also provides that “except as otherwise provided in the Constitution, in this Act or in other legislation, any question proposed for decision by the county assembly shall be determined by a majority of the members of the county assembly present and voting.”
Looking at Article 149, one may be tempted to insinuate that the Constitution failsto provide for any voting threshold in the filling of a vacancy in the Office of Deputy President. However, Article 122(1) of the Constitution provides that “Except as otherwise provided in this Constitution, anyquestion proposed for decision in either House of Parliament shall be determined by a majority of the members in that House, present and voting.This therefore means that all that is required is a simple majority or in other words 50 + 1 of the Members present and voting.
Hon. Members, if you look at other jurisdictions, case in point the United States of America and the Republic of Nigeria, the jurisprudence is similar and in the case of vacancy in the Office of Vice President, the President nominates a name and forwards it to the Assembly for vetting. Appointment is only upon confirmation by a majority vote.
Republic of Nigeria
In the case of the Republic of Nigeria, I willstart by making reference to the Constitution of the Federal Republic of Nigeria 1999. Under Section 146(3), it provides that “where the office of Vice-President becomes vacant:-
(a) by reason of death or resignation, impeachment, permanent incapacity or removal in accordance with section 143 or 144 of this Constitution;
(b) by his assumption of the office of President in accordance with subsection (1) of this section; or
(c) for any other reason, the President shall nominate and, with the approval of each House of the National Assembly, appoint a new VicePresident.”
You will note that the provisions are similar to Article 149 of the Kenyan Constitution. Pursuant to these provisions, sometime in 2010, H.E. Umaru Musa Yar’Adua, the 13th President of Nigeria died in Office and the Vice President Good Luck Jonathan succeded him. As a result a vacancy was created in the office of Vice President and in accordance with the provisions of the Constitution, Good luck Jonathan nominated NamadiSampo for the Post of Deputy President and the nomination was considered by the National Parliament and approved by a Majority vote.
Republic of Ghana
Similarly, in the year 2012, the Parliament of Ghana, pursuant to Article 60 (10) of the 1992 Constitution of Ghana, vetted the President’s Nominee for Vice President namelyKwesiBekoeAmissah-Arthur after the death of president John Evans Atta Mills who was then succeeded by President Mahama.
Hon. Members, as you can see, these issues are therefore not new in parliamentary practice across the World.
United States of America
Prior to ratification of the Twenty-fifth Amendment in 1967, noconstitutional provision existed for filling an intra-term vacancy in the vice presidency. As a result, when one occurred, the office was left vacant until filled through the next ensuing election and inauguration (as was the case in Nyeri County). Between 1812 and 1967, the vice presidency was vacant on sixteen occasions—as a result of seven deaths, one resignation, and eight cases in which the vice president succeeded to the presidency.
Section 2 of the Twenty-fifth Amendment established a procedure for filling such a vacancy. Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
Since it came into force the office has been vacant twice, until the confirmation of a new vice president by both houses of Congress and the swearing in ceremony. The first such instance occurred in 1973 following the resignation of Spiro Agnew, Richard Nixon’s vice president. Gerald Ford was subsequently nominated by President Nixon and confirmed by Congress. The second occurred 10 months later when Nixon resigned following the Watergate scandal and Ford assumed the presidency. The resulting vice presidential vacancy was filled by Nelson Rockefeller.
Hon. Members, I would also like to note that currently before the National Assembly is the County Governments (Amendment) Bill, 2017. Senate considered the Bill and passed it on 29th March, 2017 and the same is currently pending before the National Assembly. The Bill proposes the inclusion of a new Section 32 D (Filling of a vacancy in the office of deputy governor) to read as follows:-“Where a vacancy arises in the office of a deputy governor as provided for under section 32C, the governor shall ___
(a) within fourteen days, nominate the deputy governor; and
(b) with the approval of the county assembly, appoint a deputy governor.
(2) A person nominated for appointment as deputy governor under subsection (1) shall be a person eligible for election as governor.
(3) The county assembly shall __
(a) consider a motion for approval for the appointment of the deputy governor, within fourteen days, and resolve whether to approve the motion; and
(b) be deemed to have approved the motion for the appointment of the deputy governor upon the lapse of fourteen days and having failed to make a resolution.
(4) A motion for the approval for appointment of a deputy governor shall be supported by a majority of the members of a county assembly.
I am further persuaded by the position taken by the Senate in considering this matter in theCounty Governments (Amendment) Bill, 2017 at Section 32D (4)referred above.
The background to this position can further be gleaned from the Senate Hansard for March 15, 2018 SENATE DEBATES 39 where the mover of the amendments Hon. KipchumbaMurkomen gives an opinion that is of significant consideration. He states as laid out below;
Therefore, the offices of the deputy governor of Nairobi City County and the deputy governor for Nyeri County can be filled even now, with the advisory of the Supreme Court. However, so that we provide procedure of how that approval will be done, we have provided here that the county assembly will approve by simple majority. That is something that is also absent from the Supreme Court advisory opinion. The simple majority of the County Assembly should be able to pass. Some may say that, maybe, the threshold should have been made too high. If we make it too high, you make the politics too complicated and difficult for governors to replace their deputies. For that reason, the simple majority was chosen. This is also the case in the National Assembly when approving a nominee for the office of the Deputy President. It is for that reason that we must do so.”
Hon. Members, in conclusion, I have noted the concerns of the Hon. Member and concur that the issues he raised during the sitting on Tuesday 17th April, 2018 are weighty. This is the second most senior position in the County and the Members sentiments and arguments definitely hold water. However, noting that the Supreme Court has already pronounced itself on the matter and issued guidance on how the process ought to be conducted. In this regard, I propose that since the County Governments Amendment Bill, 2017 is still before the National Assembly, the Member can submit to the National Assembly by way of a petition his views on this issue.
Accordingly, I herebyrule that the motion for the approval of the appointment of the Deputy Governor in Nyeri County Assembly ought to be passed by a simple majority.
Dated at Nyeri this 19th day of April, 2018
Hon. John Kaguchia
County Assembly of Nyeri