POLITICS AND POLICY
PM Raila Odinga (left) with President Mwai Kibaki at a past function. Photo/File
By EDWIN MUTAI
IN SUMMARY
- President and PM are, under Article 134 of the Constitution, barred from nominating, appointing or dismissing State officers during “temporary incumbency.”
Assistant ministers and permanent secretaries could fill the void left by ministers who have been ordered to resign after they won elective positions.
President Mwai Kibaki and Prime Minister Raila Odinga are, under Article 134 of the Constitution, barred from nominating, appointing or dismissing State officers during “temporary incumbency,” the period between the elections and the swearing in of a new President.
“The President during this period cannot make any new appointments but what may happen, although it is sensitive, is reassignment,” said Abdikadir Mohammed, who chaired the Constitutional Implementation Oversight Committee (COIC) in the 10th Parliament.
He was responding to questions by Business Daily on the impact of 22 ministers and 19 assistant ministers resigning in order to facilitate their swearing in as Members of National Assembly, senators and governors. Under the law, ministers, now known as Cabinet secretaries, cannot be Members of Parliament.
“I guess where there is an assistant minister or permanent secretary, they will execute the duties of those vacant offices without necessarily making substantive appointment,” the former Mandera Central MP said.
Mr Mohammed said Mr Kibaki and Mr Odinga could step in as ministers and oversee the functions of about 22 ministries that will be left vacant once elected ministers resign as directed President Kibaki through the head of the Public Service Francis Kimemia on Tuesday.
A person who holds the office of the President during the temporary incumbency is barred from nominating or appointing judges of superior courts, other public officers, Cabinet secretaries and other State officers, high commissioners, ambassadors or diplomatic representatives, exercising the power of mercy and conferring honours.
Ministries vacant
“If you shift people to fill vacant positions either in the Cabinet or Civil Service, will it not be an appointment?,” he posed when asked whether the remaining ministers could act in the ministries left vacant.
Should the ministers’ leave office, Defence Ministry would have no one in charge after the minister Yusuf Haji and assistant ministers David Musila and Joseph Nkaissery were elected to the Senate and the National Assembly, respectively.
Following the government directive on Tuesday, the Cabinet would be left with 24 members including the President, the Vice President, the Prime Minister, two deputy Prime Ministers, the attorney general and 18 other ministers.
Teething problem
On Wednesday, the two principals appeared headed for a collision after Mr Odinga dismissed the directive, saying Section 12 of the Sixth Schedule of the Constitution and the National Accord Reconciliation Act protected the positions during transition.
“The persons occupying the position of President, the Prime Minister, the Vice President, Cabinet ministers and assistant ministers remain in office until the assumption of office by a duly elected President and Cabinet Secretaries have been appointed,” Mr Odinga said
Attorney-General Githu Muigai, who also sits in the Cabinet, had advised the government that ministers would lose their positions immediately they were sworn in as Senators, MPs or Governors.
“This is a teething problem of a transition where ministers were MPs. We should have prepared earlier given that we knew a big number of ministers were contesting elective seats,” Mr Mohammed said, adding that there would be no crisis in future elections because Cabinet secretaries would not be MPs.
He said nothing significant can be done during the transition period, leaving civil servants to run the government.
Even then key policy matters would have to wait until a new President is sworn in on April 9 at the earliest if the petitions filed against Uhuru Kenyatta’s declaration as President are not successful.
If they go through, key government decisions such as entering into agreements for loans and new projects would be delayed by up to five months as another electoral cycle with possible fresh elections, petitions and run-offs, sets in.
emutai@ke.nationmedia.com
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