NOTE: This story was first published on July 29, 2022 before the August 9, 2022 General Election.
President Uhuru Kenyatta lost several powers on August 9, when Kenyans went to the polls to choose their leaders including the fifth president of Kenya.
After August 9, President Uhuru entered the "temporary incumbency" phase, meaning he will be holding the seat as a caretaker leader preparing to hand over to the next Head of State.
The Constitution deprives President Uhutu of certain powers during this phase.
Chapter Nine (9), Part Two (2), Article 134 of the Constitution on Exercise of Presidential Powers During Temporary Incumbency says:
- The outgoing Head of State loses the powers to nominate or appoint judges of the superior courts.
- President loses the powers to nominate or appoint any public officer; nominate, appoint or sack a Cabinet Secretary (CS), Principal Secretary (PS) and other State officers.
- President surrenders the powers to nominate, appoint or dismiss a high commissioner, ambassador, or diplomatic or consular representative.
- The President is deprived of the ability to exercise the power of mercy, meaning he cannot pardon convicts.
- The President will also cede the authority to confer honours in the name of the people and the Republic.
The "temporary incumbency" period starts on the day Kenyans vote and it ends when the newly elected president assumes office.
Assumption of office committe
Thirty (30) days before a general election, the president should establish an assumption of office of president committee, which will steer the transition process.
The committee should be gazetted, the law says.
The law required the IEBC to declare all election results by August 15, seven days after Kenyans voted.
If no presidential election petition is filed at the Supreme Court, then President Kenyatta's successor will be sworn in on August 30, which is the first Tuesday; 14 days after the election results are formally announced.
Article 140 of the Constitution allows an aggrieved presidential candidate to challenge the election results in court.
"A person may file a petition in the Supreme Court to challenge the election of the President-elect within seven days after the date of the declaration of the results of the presidential election. Within fourteen days after the filing of a petition, the Supreme Court shall hear and determine the petition and its decision shall be final. If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination," says Article 140.
If a re-run happens
Should the upcoming presidential polls be nullified by the court after a successful petition, the latest date that the IEBC can hold the fresh presidential polls will be November 4, 2022.
If the repeat polls are held on November 4, then the electoral board must declare the results by November 10 (seven days after the polls were held). If no arising petition is filed, then the president-elect will be sworn in on November 29, which is the first Tuesday; 14 days after the results are announced.
If this year's presidential race goes all the way to November 29, then it means President Kenyatta would have been under temporary incumbency for approximately three months-and-three weeks.
The law (Article 141 of the Constitution) says a president must be sworn into office by either the Chief Justice (CJ), or his or her deputy when the CJ is unable to preside over the ceremony due to unavoidable circumstances.
The swearing-in ceremony must be held between 10am and 2pm.
