Susan Kihika’s Absence: What a Deputy Governor Cannot Do as Per Kenyan Law

Nakuru Governor Susan Kihika has been absent for at least four months, sparking debate about her whereabouts.

Amid the debate over the consequences of her absence, Deputy Governor David Kones recently confirmed that Kihika left instruments of power to him before proceeding on leave.

But are there limits to the powers of a deputy governor according to Kenyan Law?

Clinton Lumumba, an advocate and constitution expert who spoke to The Kenya Times, highlighted legal grounds on whether there is a power vacuum in the executive arm of Nakuru County.

Susan Kihika Absence

He quoted article 197(1)-(7) of the 2010 constitution which vests executive authority of a county in the executive committee.

The executive committee consists of the Governor, Deputy Governor, and members appointed by the Governor with the approval of the county assemblies.

According to Lumumba, no vacuum has been created by Kihika’s absence, as the constitution states that in the event the governor is absent, the deputy governor steps into the role of the governor in an acting capacity.

“In my opinion, that acting capacity is significantly limiting and cannot be wished away, especially where such status quo must prevail indefinitely. The generality of county government administration laws is that Deputy Governors are limited both in their substantive roles as deputy governors and in their acting capacity as Governors,” Clinton said.

Limiting Powers for Deputy Governors

In terms of limitations, Clinton Lumumba added that the Deputy Governor cannot exercise independent executive powers.

Hence, he cannot unilaterally formulate or implement county policies, meaning he will not have direct control over county finances, including budget approvals and expenditure allocations.

In addition, deputy governors cannot act as the county’s official representative in state or international matters.

What Does the Constitution Say?

Section 32 (4) of the County Government Act No. 17 of 2012, it states that:

“When acting in office as contemplated in Article 179 (5) of the Constitution, the Deputy Governor shall not exercise any powers of the governor, to nominate, appoint or dismiss, that are assigned to the governor under the Constitution or other written law.”

As such, Lumumba contends that the law deprives the governor of the authority to delegate the above-mentioned duties to their deputy governors.

“Deputy Governor of Nakuru Hon. Davis Kones is significantly limited in his acting capacity as the Governor of Nakuru, especially in areas where there is a need to exercise the full executive power,” Lumumba added.

Amendment of the Bill

Meru County Senator Kathuri Murungi, has sponsored The County Government Laws (Amendment) Bill 2024, which seeks to provide a definitive role for the Deputy Governor, clarify their responsibilities and foster harmonious relations between Governors and Deputy Governors.

Additionally, the Bill seeks to provide for the representation of governors by deputy governors in the meetings of the National and County Government Coordinating Summit.

Also Read: Four Months Later, Where is Governor Susan Kihika?

Powers of the Governor

The governor-

(a) May, dismiss a county executive committee member at any time, if the governor considers that it is appropriate or necessary to do so.

(b) Shall dismiss a county executive committee member, if required to do so by a resolution of the county assembly as provided under the constitution.

(c) May appoint an accounting officer for each department, entity, or decentralized unit of the county government; and

(d) Shall have such powers as may be necessary for the execution of the duties of the office of governor.

Also Read: Susan Kihika Breaks Silence After Questions on Her Whereabouts

Functions of the Deputy Governor

(1) The deputy governor shall take and subscribe to the oath or affirmation as set out in the Schedule to this Act before assuming office.

(2) The deputy governor shall deputize for the governor in the execution of the governor’s functions.

(3) The governor may assign the deputy governor any other responsibility or portfolio as a member of the county executive committee.

(4) When acting in office as contemplated in Article 179(5) of the Constitution, the deputy governor shall not exercise any powers of the governor, to nominate, appoint, or dismiss, that are assigned to the governor under the Constitution or other written law.

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