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Nderitu Gachagua’s death reveals vacuum in county law

Governor Samuel Wamathai

The swearing in of Mr Samuel Wamathai as governor to take over from Nderitu Gachagua, who died last week, has exposed a dilemma on how to fill the deputy governor’s position.

Both the Constitution and the County Governments Act are clear that the deputy governor takes over the position of governor in the event of the death, resignation, or impeachment of the holder of the office. But they do not specify the fate of the position of deputy governor, which, as a result of this, falls vacant.

The Supreme Court has yet to give an advisory opinion sought by the Embu County Assembly, through its Speaker, Mr Justus Kariuki Mate, in 2015.

Mate, through lawyer Tom Ojienda, had argued that the law did not provide the procedure for the deputy governor’s assumption of the governor’s office and how the position he/she vacates is supposed to be filled, given that it is an elective position.

Senator Mutula Kilonzo Jnr yesterday conceded that there was a vacuum in the law as to how the position should be filled, with some arguing that the new governor can designate one of the County Executive Committee members the role of his deputy.

LEGAL VACUUM

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“There is certainly a lacuna there, but I am imagining that the governor can now designate one of the CECs to hold the position of deputy. As it is, that position cannot be substantively filled,” argued the Makueni Senator.

Seeking an advisory opinion after the county assembly impeached Embu Governor Martin Wambora, Mate had informed the court that there was no provision on what becomes of the position of deputy governor once the former holder moves up the scale.

“What is the criterion for filling the vacancy that occurs in the office of the deputy governor when the originally elected official assumes office as governor?” he asked the court.

Mate argued that both Article 182 of the Constitution and Section 33(10) of the County Governments Act should have given directions on how to fill the position.

He also pointed out that Article 74 of the Constitution did not give directions on the procedure of administering the oath of office for the deputy governor assuming the position is vacated.

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