Why Nyoro didn’t have to wait 10 days to be sworn in

The dust has settled after the swearing-in of James Nyoro as Kiambu’s third governor but after a heated argument on whether he had to wait for 10 long days or needed a few hours to be sworn in and have the seat.

The law is clear and yet obscure.

That was the case on whether a deputy governor should be sworn in immediately or wait for ten days after a governor has been impeached.

Thursday saw a vicious online legal battle between lawyers and senators Kipchumba Murkomen and Mutula Kilonzo Jr over the matter after the aborted swearing-in of Kiambu Deputy Governor James Nyoro.

While referring to the Wednesday impeachment of Governor Ferdinand Waititu, Murkomen claimed that a deputy governor cannot be sworn in until after 10 days and the swearing-in ceremony be gazetted.

He based his claim on the Assumption of the Office of Governor Act, 2019.

On the other hand, Kilonzo argued that the referred Act only applies when a governor assumes office after elections.

“In Kiambu, a vacancy has occurred under Article 182 and the deputy shall assume office under 182(2),” Kilonzo tweeted.

Which way is the law?

Article 182 of the constitution provides for the procedure to fill a vacancy in the office of the county governor.

“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,” reads the constitution.

The constitution expressly uses the word “assume office”, however, it does not outline further how the power vacuum is to be filled.

As a result, the Assumption of the Office of Governor Act, 2019 is put into consideration.

Some experts, however, say that a deputy governor cannot be subjected to the ten days duration outlined by the Assumption of the office of Governor Act if an election did not take place. 

Part three of the Act reads: “Arrangements for assumption of office by the governor-elect.” Meaning the procedure of assuming office as outlined by this Act is primarily for a governor-elect.  

A governor-elect is a one who has been elected to that position but has not yet been installed.

If a deputy governor assumes office after the county boss has been impeached, it would, therefore, be illogical to refer to him or her as a governor-elect. Instead, he or she should be referred to as governor-designate.

There is no law outlining a particular time frame for a governor designate to be sworn in order to fill the power vacuum that has arisen at the county level.

But according to Justice John Onyiego who eventually swore in Nyoro today, the 10 days indicated in the Act can be modified and shortened because the filling of the position is not arising from an election.

Despite modifying the ten days duration, Justice Onyiego had reasoned that a County Committee must publish a gazette notice indicating the time, date and venue of the swearing-in in accordance with section 11 of the Act.

A case of reference for governor designates is that of Bomet and Nyeri after the county bosses died.

In Bomet, the immediate Deputy Governor Hillary Barchok was sworn in as third Governor, nine days after Dr Joyce Laboso’s death.

In Nyeri, Governor designate Mutahi Kahiga was sworn just three days after his predecessor Wahome Gakuru perished in a car accident.

The Assumption of the Office of Governor Act, 2019 ten days duration was not applied to effect the above transitions.

A similar case might apply after the impeachment of a governor.