Posts without ‘Functions’: A review of Article 180(5) of the Constitution of Kenya 2010 on the Position of Deputy Governors

Abstract

Article 180(5) of the Constitution of Kenya 2010 provides that each candidate for election as a county governor shall nominate a person who qualifies for election as a county governor as a candidate for deputy governor. But almost twelve years after the implementation of the Constitution of Kenya 2010, questions have arisen not only on the importance of these positions but also on whether there is a need to amend the Constitution to provide for clear and substantive functions of deputy governors or even scrap off these positions altogether. To address this dilemma, this paper will begin by exploring the constitutional duties of the deputy governors. The paper will then conduct a comparative analysis of the Kenyan county governance structure and South African provincial governance structures before then critically analysing the five functions enlisted in section 32 of the County Government Act 2012. In moving from a theoretical analysis to a practical analysis of the situation, the paper will finalise by looking into case studies involving the resignation of the former Deputy Governor of Nairobi County, Paulcarp Igathe, and the ‘absence in office’ of the West Pokot’s Deputy Governor, Nicholas Owon Atudonyang. In summary, the paper finds that constitutionally, the critical mandates of the deputy governor include deputising the Governor, filling the vacancy in cases of vacancy in the Governor’s office, and promoting inclusivity in the county. However, there are still numerous gaps in the Constitution, such as the failure to fill the vacancy in the deputy governor’s office and the lack of procedure for removing the deputy governor’s office. Having been enacted after the adoption of the Constitution of Kenya 2010, it was legitimately expected that the enactment of the County Government Act 2012 will at least address these gaps. Unfortunately, a critical analysis of section 32 of the County Government Act shows that all the enlisted functions in the aforementioned provision are merely a repetition of what is provided by the Constitution, or whatever has been enlisted as functions are fundamentally inconsequential for lack of clarity and substance