CHAPTER 9B1

PRESIDENT AND DEPUTY PRESIDENT IN AND AFRICA2

This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “President and Deputy President in Kenya and Africa,” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA) Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, & Siaya.

9.14.2 Powers and functions of President, Deputy President, Prime Minister and Cabinet in Kenya and Africa in comparative and transnational context According to Article 152(1), the Cabinet consists of the President, the Deputy President, the A-G and 14-22 Cabinet Secretaries.3 The Cabinet Office should provide the President and the Deputy President4 with public service support. The Cabinet office was expected to support the President and the Prime Minister under section 15A of the 1969 (2008) and the National Accord and Reconciliation Act (NARA), 2008. The Cabinet office should directly assist the President and Deputy President in performing all of their duties and responsibilities. In this arrangement, the President has been the Head of the Executive and Head of State; the Deputy President as Deputy to the President; and Prime Minister as supervisor and coordinator of Government functions under the then Grand Coalition Government. The BBI debates proposed the reintroduction of the Office of the Prime Minister with key executive roles shared with the President. Thus under Article 153(3) a Cabinet Secretary “shall attend before a meeting of the National Assembly, or the Senate, when required by the committee, and answer any question concerning a matter for which the Cabinet Secretary is responsible.”5 Through ongoing consultation with departments and agencies, the Cabinet Office is to provide the President and Deputy President6 with comprehensive information and analysis on

1 This Chapter is a continuation of Chapter 9A on President and Deputy President in Kenya and Africa. Some of the materials in this Chapter 9B will be copy edited to Chapter 9A and vice versa…. In fact Chapters 9A and 9B will be reviewed so that the President and Deputy President are analyzed in separate Chapters partly because constitutional text and practice in Kenya, Nigeria, Uganda, Tanzania and most African States treat them differently. Only the South African text and practice, and the Kenyan 2013-17 practice gave the impression of “the Presidency” including the President and Deputy President (Kenya) or President and DP (South Africa), respectively. 2 To cite the respective executive orders on President, Prime Minister, Deputy President, Vice President (VP), Deputy Prime Ministers (DPMs).... 3 The Cabinet portfolio after the 2013 elections has at least 14 and at most 22 Cabinet Secretaries (CSs). The first Cabinet had 21 CSs; the one unidentified Ministry was to give a chance to the President to add one slot if the President deemed it necessary. What is the constitutionality of this portfolio? Cf. ads prepared by the Public Service Commission (PSC) for prospective principle secretaries…. See Executive Orders by President …. 4 Roughly equivalent to Vice President under the 1969 Constitution from 1964 to 2013… see Chapters below on DP…. 5 Practice…. Cf… Page 1 of 58 contemplated policies and priorities. Specifically, it should provide information on the organization7 of the Government and its relations with Parliament, the Judiciary, the private sector, civil society organization (CSO), development partners, the public and others. It should also provide information on appointment of holders of senior offices, overall spending programme of the Government,8 functioning of the Cabinet decision-making system, development of major policies, management of intergovernmental relations9 and other specific issues. The Cabinet Office also provides the necessary support to the Deputy President and to the other Cabinet Secretaries. It is a Government Secretariat. It is expected to be politically impartial or non-partisan and to coordinate operations at the centre of Government.10 The Cabinet Office is the custodian of records of present and past regimes and therefore “provides continuity during regime change and assists in the management of a smooth transition.”11 Under the National Accord and Reconciliation Act (NARA), 2008, the functions of the Cabinet Office seemed to replicate those expected of the then Prime Minister as coordinator and supervisor of all Government functions and affairs and also those of the Principal Secretary (PS) in the Office of the President. Remarkably, during the negotiations between Raila’s ODM party and Kibaki’s PNU on the formation of the Grand Coalition Government, allocation of the proposed Ministry of Cabinet Affairs was controversial. Supporters of President Kibaki said it had always been in Office of the President (OP).12 Constitutional democrats argued that NARA and practice indicated that the office is always under the coordinator and a supervisor of Government functions, hence the PM.13 In addition, the structure of the Cabinet office is not clear. Therefore, the office is not overseen by responsible organs under the Constitution, e.g. Parliament and other, constitutional watchdogs like the Controller of Budget (COB) and Auditor General, or even the Ombudsperson. Yet it is part of the public service structure.

6 When there is an executive PM, the focus is on President and Prime Minister, with the Deputy President (DP) coming in when assigned by or acting as President…. Where the Prime Minister is less powerful, and is largely a “Super” Minister, the focus is on the President and the Deputy President (when executing presidential functions)…. 7 …. 8 …. 9 It would need to consult and liaise with the Ministry of Foreign Affairs (MFA). The President as the Head of State is the first diplomat under the Vienna Convention on the Law of Treaties, 1969; Article 3, Vienna Convention on Diplomatic Relations, 1961; and Art…., Vienna Convention on Consular Relations, 1963, as well as State practice. See Malcolm Shaw (2008) International Law, Cambridge University Press, (6th ed.)…. at…; D.J Harris (2009) Cases and Materials on International Law, Sweet & Maxwell, at…; Francis D.P. Situma International Law Teaching Materials, University of Nairobi Law School,….(on file at Sihanya Mentoring)… 10 …. 11 ….Handbook on Governing Responsibility. ….This role has been problematic in the past…. 12 Cf. (2016) The Flames of Freedom, Mountain Top Publishers & Worldreader, 13 Ben Sihanya and Duncan Okello (2010) “Mediating Kenya’s post-election crises: The politics and limits of power sharing agreement,” Chapter 3 of CODRALKA 1….. Page 2 of 58

9.14 Powers and Functions of the President, Deputy President and Prime Minister in Kenya and Africa What are the typologies of the powers and functions of the President, Deputy President (or Vice President) and the Prime Minister in Kenya and Africa? How does this compare to the UK, US, India….?14 A three pronged typology is emerging regarding the powers and functions of the President, Deputy President or Vice President, and Prime Minister in Kenya and Africa. First, the President has a lot of but not plenary executive and administrative powers in States that approximate the pure presidential system, like Nigeria(?). The Deputy President (or Vice President) is largely an assistant who has limited specific constitutional, statutory15 and political16 or administrative, power who can only act in a high level Executive role if assigned by President.17 Second, in States approximating pure parliamentary system like South Africa, the Prime Minister or President is largely …..by the Legislature and/or the political party(ies). Third, there are numerous constitutional and political experiments with parliamentary leaning and presidential leaning systems. Kenya is the latter.18

9.14.1 Election, (Dis)Appointment, Powers and Functions of the President, Premier, DP, VP, DPMs under the Constitution 2010, 1969 and National Accord and Reconciliation Act (NARA) 2008 Office Election/Appointment Powers and Functions19 Disappointment/Dis missal President Under Article 136 of the Arts. 131, 132, 133, 134, Removal by Constitution, 135, … Under Article 132 impeachment under (1) A person qualifies for of the Constitution: Article 145 of the nomination as a presidential (1) The President shall-- Constitution candidate if the person-- (a) address the opening of Removal on grounds (a) is a citizen by birth; each newly elected of incapacity under (b) is qualified to stand for Parliament; Article 144 of the election as a member of (b) address a special sitting Constitution Parliament; of Parliament once every

14 Cf…. List of Presidents of Kenya….; Lists of Presidents of South Africa….; List of Presidents of Nigeria….; List of Presidents of Uganda….; List of Presidents of Tanzania…; List of Presidents of Ghana. 15 Cf Chair of Independent Budget and Economic Council (IBEC) under s…. of Intergovernmental Relations Act (IGRA), 2012. 16 Cf Deputy Party Leader…. See Art. 9.1 of the Constitution; Art… 6.3 of the ODM Party Constitution; Art. 49 of FORD-Kenya Party Constitution; Art…. ANC Party Constitution…. 17 …. 18 Under the 2010 Constitution; Bomas and BBI debates proposed a Parliamentary leaning system or executive. 19 A column should capture the discussions in this book on the relationships among the five (5) Executive offices in Kenya and Africa. Page 3 of 58

(c) is nominated by a political year and may address party, or is an independent Parliament at any other candidate; and time; and (d) is nominated by not fewer (c) once every year-- than two thousand voters from each of a majority of the (i) report, in an address to counties. the nation, on all the measures taken and the Under Article 136: progress achieved in the (4) A candidate shall be realisation of the national declared elected as President if values, referred to in the candidate receives-- Article 10; (ii) publish in the Gazette (a) more than half of all the the details of the measures votes cast in the election; and and progress under sub- (b) at least twenty-five per paragraph (i); and cent (25%) of the votes cast in (iii) submit a report for each of more than half of the debate to the National counties. Assembly on the progress made in fulfilling the (5) If no candidate is elected, a international obligations of fresh election shall be held the Republic. within thirty days after the previous election and in that (2) The President shall fresh election the only nominate and, with the candidates shall be-- approval of the National Assembly, appoint, and (a) the candidate, or the may dismiss -- candidates, who received the greatest number of votes; and (a) the Cabinet Secretaries, (b) the candidate, or the in accordance with Article candidates, who received the 152; second greatest number of (b) the Attorney-General, votes. in accordance with Article 156; (6) If more than one candidate (c) the Secretary to the receives the greatest number Cabinet in accordance of votes, clause (5) (b) shall with Article 154; not apply and the only (d) Principal Secretaries in candidates in the fresh election accordance with Article shall be those contemplated in 155; high commissioners, clause (5) (a). ambassadors and Page 4 of 58

(7) The candidate who diplomatic and receives the most votes in the (e) consular fresh election shall be declared representatives; and elected as President. (f) in accordance with this Constitution, any other State or public officer whom this Constitution requires or empowers the President to appoint or dismiss.

(3) The President shall-- (a) chair Cabinet meetings; (b) direct and co-ordinate the functions of ministries and government departments; and (c) by a decision published in the Gazette, assign responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary, to the extent not inconsistent with any Act of Parliament.

(4) The President may-- (a) perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission; (b) receive foreign Page 5 of 58

diplomatic and consular representatives; (c) confer honours in the name of the people and the Republic; (d) subject to Article 58, declare a state of emergency; and (e) with the approval of Parliament, declare war.

(5) The President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries. Prime Appointed by the President Under section 4 of NARA: Could be Minister20 under the NARA.21 (1) The Prime Minister— removed from office (a) shall have authority to by a simple majority co-ordinate and supervise vote in the execution of Parliament. Under the functions and affairs of NARA, the Government, including the office of the Prime those of Minister and the Ministries; Deputy Prime Minister (b) may assign any of the shall co-ordination become vacant only responsibilities of his if— office to (a) the holder of the the Deputy Prime office dies, resigns or Ministers, as well as one ceases to be a member of them to deputise for of him; the National Assembly (c) shall perform such otherwise than by other duties as may be reason of the assigned to him by the dissolution of President or under any Parliament;

20 Cf. BBI debates…. 21 The National Accord and Reconciliation Act, 2008 expired in 2013….following the General Elections of March 4, 2013. Page 6 of 58

written law. (b) the National Assembly passes a resolution which is supported by a majority of all the members of the National Assembly, excluding the ex officio members, and of which not less than seven days notice has been given, declaring that the National Assembly has no confidence in the Prime Minister or Deputy Prime Minister, as the case may be; or (c) the coalition is dissolved. Deputy Elected together with the Is the principal assistant of President22 President under one ticket the President.

The DP “shall deputise for the President in the execution of the President’s functions.”

The DP “shall act as the President when the President is absent or temporarily incapacitated and during any other period that the President decides.” Deputy Appointed constitutionally by Deputise PM? Perform Prime the President? In consultation functions assigned by PM?

22 BBI debates 2018-2020…. Page 7 of 58

Minister with the PM? 123 Deputy Appointed by the President. Deputise PM? Perform Prime Under NARA, they were 2, functions assigned by PM? Minister 2 nominated by ODM24and by Or: each DPM assigned a PNU.25 The President and specific portfolio? Who is PNU would nominate and to act as leader of appoint this in agreement Government business in the House when the PM is unavailable?26

Source: Ongoing Research at Sihanya Mentoring and Innovative Lawyering on Constitutional Democracy, Regulatory and Admin Law in Kenya and Africa, 2020, Volumes, 1 & 2 …. 9.14.3 Powers and Functions of the President in Kenya under the Executive Orders 2018, 2019, 2020… I adopt a three pronged methodology or approach in analyzing the powers and functions of the President and Deputy President in Executive Order No. 1 of 2018 as amended three times in 2019. The first is that the Deputy President is to deputize the President or exercise delegated powers on a case by case basis or as assigned from time to time.

The second is to identify the non-delegable functions of the President under the Constitution and infer that the Deputy President cannot perform nor deputize in those functions. For instance, President’s nominal power to appoint the Chief Justice, Deputy Chief Justice and judges of superior courts.27 The third one is analyzing presidential functions and inferring from history the functions that the DP, Vice Presidents (VPs) and Deputy Prime Ministers (DPMs)28 have performed since independence on June 1, 1963.

The better methodology and approach is to have the DP’s roles specified in the Executive Order.

23 Appointed by the President? And appointed by the National Assembly? Under Art…..? Are they to hold ministerial portfolios? How may either act as Prime Minister? Does disappointment as DPM affect Cabinet and vice versa? The Council of Governors proposed three (3) DPMs…. Under NARA, they were two (2) DPMs, nominated by ODM and by PNU. ODM and PNU (party leaders) would nominate and the President would appoint …. The President’s role was nominal regarding the ODM nominee…. 24 On the basis of real power sharing on the basis of portfolio balance, ODM nominated their representative and the President only did nominal admininstrative rather than the executive appointment.... 25 …. 26 Some prefer that DPMs be assigned by the PM on case-by-case basis, depending on the nature of the issues, and skills sets…. of the DPM…. Others prefer a DPM1 and DPM2 whereby DPM1 would always act whenever the PM is not available…. 27 Arts. 134 of the 2010 Constitution. 28 When was the Prime Minister (PM), was the Deputy Prime Minister (DPM), 1/6/1963 – 12/12/1964. Page 8 of 58

In any event, there is need to test the constitutionality, legality, regularity and scope of the following functions and institutions that are assigned to the Presidency (President and Deputy President?) in Executive Order No. 1 of 2018.

The Executive Orders from 2013 referred to “Presidency’s functions….” This was changed to Executive Office of the President in the May 2020 Executive Order.29 The title “President” is constitutionally correct in this context. “Presidency” as used in previous Executive Orders is at best constitutionally suspect and at worst unconstitutional. It reflected presidential and DP political power play in the 2013-18 (?) period….or “bromance.”30

We reproduced the relevant pre-May 2020 presidential powers in Chapters 1, 4, 6…. Below are presidential powers under the May 2020 Executive Order…. This has been interpreted by DP Ruto’s supporters to subsume the DP’s Office within the Office of the President31 and interpreted by President Kenyatta’s supporters as reflecting the constitutional text….32

The Law Society of Kenya has also moved to court to challenge the constitutionality of the May 2020 executive Order regarding the manner in which the Judiciary is included in that order.33 The Court had already pronounced itself on a similar matter. On 28th June 2018, Lady Justice W.A. Okwany granted interim orders staying the implementation of Executive Order Number 1 of 2018 in respect of independent institutions pending the hearing and determination of the petition. The interim orders were still in force as at the LSK’s action in 2020. The orders were issued in Constitutional Petition No. 226 of 2018, Law Society of Kenya versus AG.

29 Republic of Kenya (2020) Executive Order No. 1 of 2020, Kenya Gazette, January 14, 2020 (Revised May 2020). 30 Jacob Ng’etich (2020) “Ruto’s absence from Uhuru’s recent events exposes his icy relations with the President,” Standard, Nairobi, March 22, 2020, at https://www.standardmedia.co.ke/article/2001365147/how-coronavirus-is- eating-into-what-is-left-of-uhuruto-bromance# (accessed 23/6/2020); Dauti Kahura (2020) “Cain and Abel politics: What killed the bromance between Uhuru and Ruto?” Elephant, Nairobi, February 28, 2020, at https://www.theelephant.info/features/2020/02/28/cain-and-abel-politics-what-killed-the-bromance-between-uhuru- and-ruto/ (accessed 23/6/2020). 31 John Kamau (2020) “Changes in Executive Order raises eyebrows,” Daily Nation, Nairobi, at https://www.nation.co.ke/kenya/news/politics/changes-in-executive-order-raise-eyebrows-494158 (accessed 23/6/2020); John Kamau (2020) “Ruto’s office loses its glamour as Uhuru takes away power, privileges,” Daily Nation, Nairobi, at https://www.nation.co.ke/kenya/news/politics/ruto-s-office-loses-its-glamour-as-uhuru-takes- away-power-privileges-499788 (accessed 23/6/2020). 32 John Kamau (2020) “Changes in Executive Order raises eyebrows,” Daily Nation, Nairobi, at https://www.nation.co.ke/kenya/news/politics/changes-in-executive-order-raise-eyebrows-494158 (accessed 23/6/2020). 33 Susan Muhindi (2020) “LSK challenges executive order to reorganize Judiciary,” Star, Nairobi, June 19, 2020, at https://www.the-star.co.ke/news/2020-06-19-lsk-challenges-executive-order-to-reorganise-judiciary/ (accessed 22/6/2020); Kamau Muthoni (2020) “LSK sues State over executive order to restructure Judiciary,” Standard, Nairobi, June 22, 2020, at https://www.standardmedia.co.ke/article/2001375722/lsk-sues-state-over-executive-order- to-restructure-judiciary (accessed 22/6/2020). Page 9 of 58

Table: The President’s functions, Institutions, Relationships in Kenya and Africa

Functions Institutions Overall Policy Direction and Leadership. National Security Council ( Article 240, National Security Council Promotion of National Unity and Protection of Act, 2012) National Interest National Intelligence Service (National Civilian Oversight of national Security Organs Security Intelligence Service Act, 2012)

Custodian of National Security Policy and National Security Advisory Committee Strategy (NSAC)

Oversight over the National Intelligence National Counter Terrorism Centre (NCTC) Service (Security Laws Amendment Act 2014)

Management of the Assumption of the Office Assumption of the Office of President of President Committee (Assumption of the Office of President Act, 2012) Co-ordination of Functions of Ministries and State Departments President’s Delivery Unit

Chair-Cabinet National Economic and Social Council (NESC) Chair – National and County Governments Co- ordinating Summit State Corporations Advisory Committee (SCAC) (State Corporations Act, Cap 446) Oversight of State Corporations Inspectorate of State Corporations (State Appointment of the Attorney General Corporations Act, Cap 446)

Intergovernmental Budget and Economic Intergovernmental Budget and Economic Policy Management Council)

Advisory on the Management of Kenya’s Kenya International Boundaries Office International Borders. Directorate of National Cohesion and Values Appointment of Cabinet Secretaries National and County Governments Honours Appointment Chief Justice, Deputy Chief Advisory Committee (National Honours Act, Justice and Judges of the Superior Courts 2013)

Appointment of Principal Secretaries Power of Mercy Advisory Committee (Power of Mercy Act, 2011) Kenya South Sudan Liaison Services Kenya South Sudan Liaison Office Appointment of Chairpersons and (KESSULO) Commissioners of Constitutional Commissions Page 10 of 58

Public Service Performance Management Unit Appointment of High Commissioners and Ambassadors.

Appointment of Chairpersons of State Corporations.

Appointment of State/Public Officers as provided by law.

Establishment of Public Offices in Accordance with the Constitution

Conferment of Honours in the name of the people and the Republic

Administration of Power of Mercy

Accreditation of Foreign Diplomatic and Consular representatives

Annual Reporting to Parliament on the Realization of National Values, Principles of Governance, National Security and Fulfilment of Kenya’s International Obligations

National Cohesion and Integration Policy

Promotion of Nationhood and National Values

Co-ordination of National Policy and Strategy

Cabinet Affairs and Secretariat

Co-ordinating Delivery of National Priorities and Flagship Programmes

Public Service Performance Management and Monitoring

Proclamation of Public Holidays

Co-ordination of Counter Terrorism Strategy and Policy Implementation

Co-ordination of Counter Radicalization, Disengagement and Rehabilitation

Page 11 of 58

Focal Point for Bilateral and Multilateral Partnerships in Counter Terrorism

Creation and Co-ordination of Commissions of Inquiry and Tribunals34

Parliamentary Liaison

Co-ordination of Constitutional Commissions35

Government Spokesperson Source: Ongoing Research at Sihanya Mentoring and Innovative Lawyering on Constitutional Democracy, Regulatory and Admin Law in Kenya and Africa, 2020, Volumes 1 & 2….

Mr William Samoei arap Ruto was appointed the first Deputy President (2013-2017; 2017- ). His office at Harambee House Annex was formerly Office of the Prime Minister (2008-13).36 And before that, that office was Shell House...37 It was bought and refurbished for the Prime Minister as part of the reconstruction following the post-election violence (PEV). Why was the DP’s office renamed annex? Does it mean the Deputy President’s office is (constitutionally) dependent or annexed to the Office of the President?38

9.15 Presidential Policies, Programs, and Projects: Some Ministries, Departments and Agencies and Semi-Autonomous Government Agencies in Kenya and Africa What are some of the core presidential powers and functions? How are they expressed in policies, programs, action plans, projects, activities?39 How are they expressed in organs, branches, or arms of Government and institutions, organizations and agencies including ministries departments and agencies (MDAs) and semi-autonomous state agencies (SAGAs)? What resources are available to the President in terms of human resources, finance, equipment, facilities and infrastructure? 9.15.1 Financial Resources and Accountability of the Office of the President [To review] How is money allocated and appropriated for the Office of the President? State Houses and State Lodges? Is it a separate, independent budget line?

34 Cf Chapter 15 and Art 132(4) of the Constitution of Kenya…. Chapters 7, 9A, 9B on President and Deputy President, and Chapter 12 on Constitutional Commissions and Independent Offices….. 35 Constitutional Commissions and Independent Offices are independent under the Constitution and have their own administrative inter CCIO coordination structure? 36 See Chapter 10 on Prime Minister and Deputy Prime Minister…. 37 …. 38 See also Chapters 9A, 10, below on PM and DPM. Chapters 19 on assessing DPs and VPs in Kenya and Africa…. 39 …. Page 12 of 58

What are its components, for example, administrative, travel,40 entertainment? What proportions and how much has been allocated in every one of the four presidencies in Kenya? How does the allocation to the Office of the President relate to allocations for the rule of law? Health? Security? Food? Education? Water? How has the Office of the President accounted for the funds? There were criticisms of withdrawals linked to the Office of the President Accounts, and whether such offices are exempted from the audit carried by the Office of the Auditor-General.41 9.15.2 Security and Safety in Kenya and Africa What are the constitutional provisions including State and Government commitments? What are the key statutes, rules and regulations? What are the core policies and action plans? How have case law, scholars and academics addressed the constitutional, legal, regulatory, administrative and policy questions? 9.15.3 Health in Kenya and Africa What are the constitutional provisions including State and Government commitments? What are the key statutes, rules and regulations? What are the core policies and action plans? How have case law and academics addressed the constitutional, legal, regulatory, administrative and policy questions? What are the main health challenges in Kenya and Africa? Epidemics? Pandemics? Malaria, Tuberculosis (TB), HIV/AIDS, cholera, hepatitis, cancer, obesity, COVID- 19.42 Health financing? Human resource management? Training, management, promotions,

40 Uhuru Kenyatta’s Office of the President and Deputy President Ruto recorded consistent travel budget overruns in the 2013-20 period. Cf Felix Olick and James Mbaka (2018) “How Government is wasting your taxes,” Star, Nairobi, October 22, 2018, at https://www.the-star.co.ke/news/2018-10-22-how-government-is-wasting-your-taxes/ (accessed 20/5/2020); Vincent Achuka and Paul Wafula (2019) “Ouko wants Constitution changed to clip President’s powers,” Daily Nation, Nairobi, August 28, 2019, at https://www.nation.co.ke/news/Why-Ouko-wants- president-s-powers-clipped/1056-5251348-4vri1v/index.html (accessed 20/5/2019)…. Why? What did Ouko propose? That Head of State would help tame Head of Government in terms of public expenditure? 41 Isaac Ongiri (2014) “MPs split on fresh Sh8.3bn audit,” Daily Nation, Nairobi, September 1, 2014, at http://mobile.nation.co.ke/news/MPs-Office-of-the-President-Scandal-Audit/-/1950946/2437900/-/format/xhtml/- /15ge3npz/-/index.html (accessed 20/10/14)…. Frankline Sunday (2018) “Kenya’s Presidency alone spends more cash than all commissions combined,” Standard, Nairobi, October 16, 2018, at https://www.standardmedia.co.ke/article/2001299250/presidency-alone-spends-more-cash-than-all-commissions- combined# (accessed 23/6/2020); Edwin Mutai (2017) “Sh 2.7bn secret Uhuru, Ruto budget revealed,” Business Daily, Nairobi, December 7, 2020, at https://www.businessdailyafrica.com/economy/Sh2-7bn-secret-Uhuru--Ruto- budget-revealed/3946234-4218092-sgm2e7z/index.html (accessed 23/6/2020); Nevile Otuki (2017) “Uhuru, Ruto travel costs cross Sh 1bn in polls year,” Business Daily, Nairobi, November 6, 2017, at https://www.businessdailyafrica.com/economy/Uhuru--Ruto-travel-costs-cross-Sh1bn-in-polls-year/3946234- 4175828-d3g42n/index.html (accessed 23/6/2020). 42 See also Chapters 8A and 8B; See Ben Sihanya (2016; reprinted 2020) Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya; Ben Sihanya (forthcoming 2020) Intellectual Property and Innovation Law in Kenya and Africa: Cases and Materials, IL & SM, Nairobi & Siaya. Page 13 of 58 transfer of employees? National and County Government cooperation and coordination…. Monitoring and evaluation? How have Afro-Kenyan Presidents and Deputy Presidents performed on COVID-19 management? Received funds, wasted and looted funds…. What policies, plans and strategies or constitutional reforms have African Presidents proposed to deal with health emergencies, epidemics and pandemics into the (post-epidemic or post-pandemic) future…. 9.15.4 Food security and agriculture in Kenya and Africa What are the constitutional provisions including State and Government commitments? What are the key statutes, rules and regulations? What are the core policies and action plans? How have case law and academics addressed the constitutional, legal, regulatory, administrative and policy questions? 9.15.5 Education in Kenya and Africa What are the constitutional provisions including State and Government commitments? What are the key statutes, rules and regulations? What are the core policies and action plans? How have case law and academics addressed the constitutional, legal, regulatory, administrative and policy questions? Floods, drought, El Nino, La Nina…. Especially in 2020. How do Afro-Kenyan Presidents formulate, implement, review, and monitor and evaluate (M&E) policy? Specifically, how do they approach manifestos? Sectoral polices? Sessional papers? Cross sectional policies? How do Presidents choose legacy programmes and projects? What are the legacy projects of Presidents Jomo Kenyatta? Moi? ? Uhuru Kenyatta?43

9.15.6 Water in Kenya and Africa What are the constitutional provisions including State and Government commitments? What are the key statutes, rules and regulations? What are the core policies and action plans? How have case law and academies addressed the constitutional, legal, regulatory, administrative and policy questions?

43 Cf the 4 Agenda Projects: Universal Healthcare (UHC), food security, affordable housing, and manufacturing? Sources? What were the alternatives? How have the Presidents’ officers and offices interpreted legacy projects and regular Government of Kenya projects? Page 14 of 58

9. 16 President, Premier, and Cabinet Offices in Kenya and Africa Traditionally, the President has maintained two main offices. Harambee House, located in Harambee Avenue in the Nairobi City County has been the “Office of the President” (or OP).44 State House is the President’s official residence. State House is considered the President’s office too.45 9.16.1 Office of the President and Cabinet Office in Harambee House in Kenya and Africa46 The President’s office in Harambee House has always served as the Cabinet Office too.47 To discuss Harambee House more…. Which other offices of Ministers, Cabinet Secretary, Chief Administrative Secretary, Principal Secretary and Presidential Advisor have been based at Harambee House or State House since independence in 1963?

9.16.2 State House in Kenya and Africa48 State House consists of the President’s personal and public service staff under the Private Secretary or Comptroller of State House.49 The Office serves the President and is expected to be fully accountable to him. Under Uhuru Kenyatta new positions were created in State House. These include: Advisor or Constitutional Affairs (Abdikadir Mohamed) ….50 What is the constitutionality and legality of their creation? How do they fit in the establishment, including the requirement of a recommendation by the Public Service Commission under Art 132(4) and public participation under Art 10….?51 How are recruitments done, in terms of diversity,52 transparency, competitiveness?53 Their operation vis-a-vis the mainstream public or

44 …. 45 The four (4) Presidents have also used some State Houses and State Lodges, as well as, private homes for some official business. Jomo Kenyatta: State Houses in Nakuru and Mombasa, and Gatundu Home (Ichaweri; “Ikulu”). : State Houses in Nakuru and Mombasa, and Kabarnet gardens (Nairobi) and Kabarak Home. Mwai Kibaki: State Houses in Nakuru and Mombasa and Muthaiga Home. Uhuru Kenyatta: State House in Mombasa, State Lodge in Sagana…. 46 Cf. Secretary to the Cabinet was constitutionalised in 2010 under Art. 154, 132(2)(c) as separate office, even though since Kenyatta I years, the senior PS invariably handled three offices: PS in the Office of the President Head of Public Service, and Secretary to the Cabinet…. Of course, the PS office was the constitutionally and legally strong. But Head of Public Service and Secretary to the Cabinet had greater administrative, political, and policy gravitas. In some cases, the Secretary to the Cabinet has been based at State House.... for example... 47 Cf. Nigeria’s Asso Rock; South Africa (Pretoria.)…. 48 First Schedule to the Protected Areas Act, Cap 204. State House was Government House in colonial Kenya. See.... Cf. Asso Rock in Abuja, Nigeria... In South Africa... White House, USA, Downing No. 10 and Chequers, UK….. 49 Under Mwai Kibaki, the two roles were separated. Later was it is the private secretary. 50 Nzau Musau (2018) “Why former MP Abdikadir rejected Korea assignment,” Standard, Nairobi, March 18, 2018, at https://www.standardmedia.co.ke/article/2001273591/why-former-mp-abdikadir-rejected-korea-assignment (accessed 23/6/2020). 51 Are Public Service Commission (PSC) recommendations subjected to Art 47 on Fair Administrative Action Act? Remarkably, the establishment and abolition of public office by the President must be subject to public participation. 52 Arts 10, 132, 232… of Constitution of Kenya. 53 …. Page 15 of 58 civil service?54 What about their scheme of service, remuneration including salaries, allowances, gratuity or retirement benefits, promotion, discipline, (dis)appointment?55 State House is expected to perform the following four functions. First, support the President in exercising his duties as Head of State and of Government.56 Up to 2013, the President was also the president of a political party57 and Member of Parliament.58 Second, provide advice on policy development and appointments.59 Third, discuss Parliamentary proceedings with the President, and facilitate the President relations with Ministers, the MPs and the Government as a whole.60 Fourth, schedule the diary, organize his public statements, relations with the media61 and handle his correspondence.62 In general, State House is supposed to play an important role in enabling the President to guide the political strategy of the Government and is the central point of communication and coordination with CSs, the Civil Service and Members of Parliament.63 It should also work closely with the Cabinet Office to provide advice and support from different perspectives on the issues of daily concern to the President.64 The operational structure of State House has historically been shielded from scrutiny.65 While there is no constitutional or legislative66 structure for State House, it clearly has a major role to play in the exercise of the President’s executive authority. It has historically evolved informal or unofficial power centres known as “kitchen cabinets.”

54 Cf. many advisors appointed under Office of the President, Deputy President, Cabinet Secretaries’ offices.....Admin (qualifications, advertisement…? By passing career civil servants...); Justus Wanga (2019) “Unease as minister’s advisors run the show, Sunday Nation, Nairobi, 17/3/2019, at https://www.nation.co.ke/news/politics/Unease-as-advisers-hired-by-ministers-run-the-show/1064-5028708- 111plhuz/index.html (accessed 25/3/2019). 55 Some like Denis Itumbi was disappointed in State House and moved to the Deputy President’s office…. Some were appointed ambassadors. 56 The State House Comptroller is in charge of this. Under the Constitution of Kenya 2010, the President shall not appoint political partisans to state or public office. But should the President lead a political party or prioritize former political partisans who have not shown non partisanship? Subsequently? 57 The President is a Party Leader (PL). The President was the PL on an interim basis as both Kibaki and Kenyatta did not facilitate party elections in the 2002 – 2020 period in DP(NARRC), PNU, TNA (Jubilee Alliance), or Jubilee Party…. And in some cases, the key party organs of National Executive Council (NEC) and National Governing Council (NGC) or national Delegates Conference (NDC)or equivalent never met for even four years…. 58 …. 59 …. 60 …. 61 Cf. Presidential Strategic Communications Unit (PSCU), Presidential Press Service…. 62 …. 63 …. 64 …. 65 …. 66 …. Page 16 of 58

How have the informal power centre, including the “kitchen cabinet” operated since independence? Who were they and what do or did they do under Kenyatta I?67 Moi?68 Kibaki?69 Kenyatta II?70 Matere Kereri reportedly limited some NARC Ministers’ access to President Kibaki.71 The roles of the State House officials have fundamentally conflicted with those of the mainstream public or Civil Service including the role of the offices in the Office of the President at Harambee House. For instance, under Kenyatta II, there were conflicting powers, functions and roles of the Advisor on Constitutional Affairs, Mr Abdikadir Mohamed vis-à-vis the Attorney General….72 And under President Kibaki, there was the Principal Secretary for Strategy (at State House) vis- à-vis the Minister and Principal Secretary (PS) for Planning Ministry.73 There was also advisor on Economic and Political Affairs vis-a-vis relevant Ministries and departments of the Government.74 After the 2008 Accord, Mwai Kibaki also appointed advisors on constitutional, parliamentary and coalition affairs (Prof Kivutha Kibwana). And on advisor on media, ethnic and youth affairs (Mr. Raphael Tuju). They were based at the Office of the President (OP) in Harambee House. How do the powers and functions of the informal advisors relate to those of the other constitutional power structures in Kenya.75

67 Charles Njonjo, Peter Mbiyu Koinange, Peter Muigai Kenyatta, …. And technocrats were Geoffrey Kareithi, Duncan Ndegwa, …. Kamau Ngotho claims on the basis of his “interviews” that Peter Mbiyu Koinange was a “court jester” who was not as powerful as always stated or assumedSee Kamau Ngotho (2020) “Mbiyu Koinange: Bundle of contrasts of Jomo’s friend,” Daily Nation, Nairobi, May 17, 2020, at https://www.nation.co.ke/news/politics/Mbiyu-Koinange-Jomo-friend/1064-5554790-et6js7/index.html (accessed 20/5/2020). Ngotho has – once again – ignored and glossed over published books, articles, and correspondence that show that Koinange was very powerful. Koinange would represent Kenyatta even when Jaramogi was Vice President, and be saluted as the President’s representative in Jaramogi’s presence. See….Koinange would write letters to Kenyatta contradicting other Ministers like TJ Mboya and he would prevail precisely on grounds of ethnic and filial affiliation. See …. John Kamau (2013) “The powerful men who had Mr President’s ears,” Sunday Nation, Nairobi, December 8, 2013, at https://www.nation.co.ke/kenya50/governance/The-powerful-men-who-had-Mr- Presidents-ears/2032914-2103684-13utrnz/index.html (accessed 2/6/2020)…. As usual, Ngotho contradicts himself with reckless abandon: Cf Kamau Ngotho (2019) “Mbiyu Koinange and the mystery of JM’s murder,” Daily Nation, Nairobi, May 26, 2019, at https://www.nation.co.ke/news/politics/Mbiyu-Koinange-and-the-mystery-of-JM- murder/1064-5131668-fys64o/index.html (accessed 20/5/2020). in his 2020 essays, Kamau Ngotho forgot that a powerless “court jester” was incriminated in the murder of JM Kariuki with Kenyatta frantically seeking cancellation of his name from the Parliamentary Select Committee Report. See Chapter 8B, on Judiciary and Commissions of Inquiry in Kenya and Africa. 68 …. 69 The Mt Kenya mafia, the Muthaiga mafia, the five (5) Ms :Murungaru, Muthaura, Murungi, Mwiraria…. See…. 70 The informal power baron(esse)s and factotums in Kenyatta II’s first term were… 71 To discuss under Kenyatta, Moi, Kibaki, Kenyatta Kamwana,... 72 …. 73 Names? More?.... 74 These others seem to have been abolished by the Accord and Article 32 of the Constitution 2010. The officers were Mr Stanley Murage, Mr Sam Mwale, and Ms Nancy Gitau, being advisors on strategy, economic affairs, and political affairs and governance, respectively. 75 Moses Kuria…., Peter Mwangi Kagwanja…., Mutahi Ngunyi…. Page 17 of 58

The Kenyatta Kamwana Office of the President established at least three key offices. First, the Chief of Staff of the President who sometimes76 doubled up as the Head of Public Service, as the most senior officer.77 The State House Comptroller was then assigned to be in charge of the finances and spending as well as monitoring internal controls in State House.78 Second, Kenyatta II also established the Presidential Delivery Unite (PDU).79 The evolving mandate of the PDU is three pronged. First, delivery of flagship projects under the Big Four Agenda (Universal Health Care (UHC), food security, manufacturing, and affordable housing.) Second, tracking and reporting these flagship projects. Third, interactive and communication of progress made with Kenyan citizens.80 Third, Presidential Strategic Communications Unit (PSCU) “is in charge of all official Government communications.”81 What is their constitutionality, legality, competitiveness, equity, diversity, efficiency, and effectiveness…?82 Other offices include that of the Presidential Library, Museum and Exhibition Centre established in 2018 to focus on the legacies of founding President Mzee Jomo Kenyatta, Second President Daniel Toroitich arap Moi and Third President Emilio Mwai Kibaki’s.83 How have these addressed the questions of accuracy, representation or portrayal and comprehensiveness of the historical records, and impact of serving and retired Presidents?.... There was also established the office of the Senior Political Advisor, to provide the President with regular briefs and policy positions with regard to political matters. And the Senior Constitutional and Legislative Advisor was to provide technical advice to the President, including contributing to the formulation of strategic approaches and coordinated programmatic inputs that support the implementation of the Constitution.84

76 …. 77 …. 78 Who were the state House Controllers under Kenyatta I?.... Moi?.... Kibaki?.... Kenyatta II? 79 See Presidential Delivery Unit portal, at https://www.delivery.go.ke/ (accessed 20/5/2020). 80 Presidential Delivery Unit (2020) Delivery of a President’s Agenda…. 81 Cf. the suspension of the Directors of the Presidential Strategic Communications Unit (PSCU) due to unclear roles and duties, etc... See also Stephen Ndegwa (2013) “New unit must improve image of administration at the State House,” at http://www.standardmedia.co.ke/article/2000088921/new-unit-must-improve-image-of-administration-at- the-state-house (accessed 4/7/2016)…. 82 Consider the creation, operation and impact of the Presidential Delivery Unit (PDU) in the run up to the 2017 elections…. Did former British Prime Minister Tony Blair help develop and deliver Jubilee Party’s (JP’s) propaganda through State House and the Office of the President’s Presidential Delivery Unite... See…. 83 See The Presidency, at http://www.president.go.ke/2018/06/05/announcing-new-appointments-to-the-pscu/ (accessed 15/8/2019). 84 Congressional approval of presidential advisors and task forces. Why did presidential advisors like Abdikadir Mohamed emphasize on their recommendation that the- Government focus on as a business, hence Government Owned Enterprises Bill, 2014? What is the appropriateness of Chinese model in the context of Afro-Kenyan and Chinese comparative constitutional democracy, political economy and legal sociology? Consolidation or merger of institutions like Agriculture and Food Authority (AFA) under the Agriculture, Fisheries and Food Authority Act, No. 13 of 2013, and Intellectual Property Office of Kenya under the IPOK Bill, 2020? Some of these mergers dramatically failed. The Intellectual Property Office of Kenya (IPOK) Bill, 2020 is contra constitutional, contra factual, contra intuitive…. See Ben Sihanya (2016; reprinted 2020) Intellectual Property and Innovation Law in Kenya and Africa: Transferring Technology for Sustainable Development, IL & SM, Nairobi & Siaya; Ben Sihanya Page 18 of 58

How do these “advisor(y)” offices reflect the comparative and transnational or international experience and best practices?85 Remarkably, there is the office of National Security Advisor (NSA),86 and other advisor(y) offices are established in the US constitutional and legal tradition.87 Some have been positively or negatively impactful….

What were the roles of Prof Condoleeza Rice,88 Karl Rove89 (Bush’s brain(trust…)? The Economics and Law professors90 who served in the Barrack Obama administration, especially to address the global economic crisi and re-orient governance and foreign policy?

What are some of the “trivia” with constitutional implications regarding the State House? Fencing 2007 reportedly to stave off the possibility of a popular match on State House should the elections be rigged as some threatened prior to the 2002 elections.91…. There was also a white (New Zealander) who was found in State House premises. He said he was there as a bird watcher.92

And in…., a Legio Maria man was found washing his clothes in State House…..93

What is the future constitutional, political, economic and cultural role of Harambee House, State House, Harambee House Annex, Karen Deputy President’s residence State Lodges and related premises...?94

9.17 Powers and Functions of the President in Kenya and Africa [Review] The substantive functions of the President under Article 132(1) include: First, addressing the opening of each newly elected Parliament. Second, addressing a special sitting of Parliament once every year and may address Parliament at any other time.

Third, the President has the power to nominate and, with the approval of the National Assembly, appoint, and may dismiss --

(forthcoming 2020) Intellectual Property and Innovation Law in Kenya and Africa: Cases and Materials, IL & SM, Nairobi & Siaya. 85 Cf. The Hoover Commission Report on Reorganization of Government, 1949 86 E.g. under President George W. Bush, Condoleezza Rice, of the Hoover at Stanford: Bill Clinton, Barack Obama, Donald J. Trump… 87 …. 88 Condoleeza Rice worked with George W. Bush II in the pre-presidential and post-presidential phases as National Security Advisor (1St term), and Secretary of State (2nd term), respectively. She was a Stanford University Comparative History Professor…. 89He was the Deputy Chief Staff in the Bush administration until his resignation in August 31, 2007. He was also referred to as “Bush’s brain….” 90 The role of constitutional professor Cass Sunstein, an expert on regulatory and administrative law at University of Chicago and later at Havard Law School (HLS)…. 91 …. 92 …. 93 …. 94 …. Page 19 of 58

(a) the Cabinet Secretaries, in accordance with Article 152 (b) the Attorney-General, in accordance with Article 156 (c) the Secretary to the Cabinet in accordance with Article 154 (d) Principal Secretaries in accordance with Article 155; high commissioners, ambassadors and diplomatic and (e) consular representatives; and (f) in accordance with this Constitution, any other State or public officer whom this Constitution requires or empowers the President to appoint or dismiss.

Fourth, the President chairs Cabinet meetings; directs and co-ordinates the functions of ministries and Government departments; and (by a decision published in the Gazette, assigns responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary, to the extent not inconsistent with any Act of Parliament.

Fifth, the President may-- “(a) perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission (b) receive foreign diplomatic and consular representatives (c) confer honours in the name of the people and the Republic (d) subject to Article 58, declare a state of emergency; and (e) with the approval of Parliament, declare war.”

Sixth, the President is to ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.

9.18 Impeachment, Removal vis-à-vis Vote of No Confidence in the President in Kenya and Africa What is the role of a vote of no confidence and a positive vote of confidence What was the content and significance of section 59 of the 1969 Constitution…?

Section 59 stated thus:

“(1) The President may at any time prorogue95 Parliament.

(2) The President may at any time dissolve96 Parliament. (3) If the National Assembly97 passes a resolution which is supported by the votes of a majority of all the members of the Assembly (excluding the ex officio members), and of which not less than seven days' notice has been given in accordance with the standing orders of the Assembly, declaring that it has no confidence in the Government of Kenya, and the President does not within three days of the passing of that resolution either resign from his office or dissolve Parliament,

95 …. 96 …. 97 There was only one Chamber. Kenya was unicameral from 1967(?) to 2013…. See Chapters…. CODRALKA 1 & 2. Page 20 of 58

Parliament shall stand dissolved on the fourth day following the day on which that resolution was passed.

(4) Parliament,98 unless sooner dissolved, shall continue for five years from the date when the National Assembly first meets after any dissolution and shall then stand dissolved.

(5) At any time when Kenya is at war, Parliament may from time to time provide for the extension of the period of five years specified in subsection (4) of this section for not more than twelve months at a time: Provided that the life of Parliament shall not be extended under this subsection by more than five years.”

How many succeeded in Kenya and Africa? Why or how? What was the significance of the Tom Mboya vote of confidence in Kenyatta in 1969?99 Orengo against Moi in 1998(?) Orengo against Moi and Saitoti in 1999(?)….

What is the process? Efficiency? Reforms and post 2020 and BBI debates?

9.21 Post 2017 and BBI Debates on Reforming the Presidency, Premiership... in Kenya and Africa The foregoing positions are under the 2010 Constitution while some were under the 1969 Constitution as amended in 2008 and under the NARA-2008-2013. What executive-legislative structure should Kenya adopt in the context of BBI and the post 2017 debates generally? Fill in the blanks in the Table below:

Table: Executive Structure in Kenya and Africa Office Election or Powers and Disappointment or Appointment Functions Dismissal President Prime Minster Deputy President Deputy Prime Minister Deputy Prime Minister Cabinet Secretary Elected, nominated? Sitting in National (CS), Cabinet Elected, nominated? Assembly (NA)? What of Principal Minister (CM), Sitting in National Secretary (PS)?100

98 Sometimes National Assembly and Parliament were used interchangeably. Strictly, in the unicameral period, Parliament meant the National Assembly plus President. President was a redundant component in some cases because President had to be an MP (Member of NA). The significance was that legislation required passage by the National Assembly and assent by the President. See Chapters 5A, 7 on Legislature 99 …. 100 On Cabinet Secretaries or Cabinet Ministers and Principal Secretaries, see Chapter 14 on Regulation and Administration of Con Democracy and on Administrative Bureaucracy and Regulatory Process and Justice in Kenya Page 21 of 58 technocrat? Assembly (NA)? Cabinet Secretary (CS), Cabinet Minister (CM), political?

Source: Ongoing Research at Sihanya Mentoring and Innovative Lawyering on Constitutional Democracy, Regulatory and Admin Law in Kenya and Africa, 2020, Volumes 1 & 2….

9.20 (?) Titles of Presidents and Prime Ministers in Kenya and Africa101 Kenya Presidents Prime Minsters 1. His Excellency the President 1. Right Hon 2. Mtukufu Rais 2. Hon 3. Mheshimiwa Rais 3. Cf references to Jomo Kenyatta as PM.... 4. Mr President 4. Baba, Joshua, Agwambo, Tinga, HE People’s President, Jakom, Hummer (Nyundo)…. 5. Commander-in-Chief 6. Osagyefo – Saviour (Nkurumah) 7. Kamaliza;102 Kolofi103 8. Nyayo 9. Kamwana, Prince 10. Emperor

and Africa: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration, County Public Service Board (CPSB); County Secretary) in Kenya and Africa…. 101 Cf. titles in Kenya and Africa historically... consider personal nicknames and their constitutional and political effect.... See also table below….on the formal and informal titles of Head of States and Government in Kenya and Africa, UK, USA,…. 102 Meaning? Terminator….Significance? He was so named by his co-ethnics after the assassination of JM Kariuki? See…. 103 It means “quarrelsome” in Kikuyu. See John Kamau (2013) “The powerful men who had the President’s ears” Sunday Nation, December 8, 2013, at https://www.nation.co.ke/kenya50/governance/The-powerful-men-who-had- Mr-Presidents-ears/2032914-2103684-13utrnz/index.html (accessed 2/6/2020), op. cit.? Significance? Kamau Ngotho claims it was “korofi” (a Kikuyu term meaning “naughty…”),…. And yet Mbiyu Koinange and Jomo Kenyatta referred to each other as korofi….See Kamau Ngotho (2020) “Mbiyu Koinange: Bundle of contrasts of Jomo’s friend,” op. cit…. Page 22 of 58

COUNTRY OFFICE OFFICE HOLDER OFFICIAL OTHER TITLES TITLES.

1. Kenya Head of State Jomo Kenyatta His Excellency, Mzee, and (Kamau wa Muigai, CGH105 President, Mtukufu Rais, Government. Kamau wa Ngegi, Commander-in- Mzee wetu, Johnstone Kamau, Chief of the Armed Cf. Kamaliza, Johnstone Forces of the Kolofi Kenyatta)104 Republic of Kenya

Died in office in 1978

Daniel Toroitich His Excellency, Mtukufu Rais, Arap Moi C.G.H. President, Farmer Commander in number one, Retired on Chief of the Armed Baba wa 30/12/2020 Forces of The Taifa, Died on 4/2/2020 Republic of Kenya Kiongozi Bora.

Cf. Nyayo, DTM, HEDAM, MO1 (M.O. One); “Prof of Politics,”106 Doktari107

104 Kamau Ngotho (2020) writes one version of the evolution of Keyatta’s names: Kamau Ngotho writes: “It is Koinange who helped Kenyatta coin the word “Jomo” which became his first name. Kenyatta had been born Kamau wa Muigai. When his father died and his mother was inherited by her late husband’s brother, he became Kamau wa Ngengi. At baptism he assumed the name Johnstone Kamau. He had insisted to be called John Peter but was told to choose one of the two. He insisted and added ‘stone’ which is same as ‘Teter’ [sic: Peter] to John to come up with one name Johnstone.” ….See Kamau Ngotho (2020) “Mbiyu Koinange: Bundle of contrasts of Jomo’s friend,” op. cit…. 105 Chief of the Order of the Golden heart 106 Self-proclaimed “Professor of politics”…. Did Moi (subconsciously) somehow admire or appreciate the professorate? Or only his “professorship” …. 107 Moi’s favourite son and political heir, Gideon Moi said this meant, in the Moi context, who advises you (Moi) not to eat meat (verify). Page 23 of 58

(Emilio Stanley) His Excellency, Mheshimiwa Mwai Kibaki CGH President, Rais Commander-in- Retired in 2013 Chief of the Defence Forces of Gen the Republic of Kagueya? Kenya Fence sitter? “Town fellow”108

Uhuru Kenyatta His Excellency, Mheshimiwa CGH President, Rais 2013- Commander-in-

Chief of the Kamwana, Defence Forces of Prince 109 the Republic of “Uhunye” Kenya The Republic of Kenya

2. England Head of State Queen Elizabeth Her Majesty Fount of Justice, Head 1952- of the Armed Forces; By the Grace of God, of Great Britain, Ireland and the British Dominions beyond the

108 Kibaki is reported to have referred to himself as “town fellow.” He represented Bahati Constitutuency, in Nairobi up to 1974 when he moved to Othaya in Nyeri mainly because Mrs Jael Mbogo was more popular and had probably defeated him in 1969…. See Weekly Review…. 109 He also acknowledged people referring to him as Uhunye, including during launch of the BBI report in November 2019…. Page 24 of 58

Seas, Queen, Defen der of the Faith

3. USA Head of State Barack H. Obama Mr President POTUS and Government 2008-2016 Commander-in- Chief

Donald Trump Mr President POTUS

2016-

4. Germany Head of Angela Merkel Chancellor of Government. Germany

5. Zaire Head of State Mobutu Sese Seko President; A cock that and Head of Commander-in- leaves no hen Government Deposed 1997 Chief of the Armed untouched (1966-1997) Died 1997 Forces (kuku Ngbendu Wa ZaBanga), Father of the Nation, Messiah, Guide of the Revolution, Helmsman, Founder, Saviour of the People, Supreme Combatant.

6. Malawi Head of State (Dr Hastings) Mr President; Lion of and Kamuzu Banda Commander-in- Malawi, Government Chief of the Armed Nkwanzi the Defeated 1994 Forces giant bird Died 1997 catching fish in Lake Page 25 of 58

Malawi

7. The Head of State Yahya Jammeh Mr President, His Gambia and Commander-in- Excellency Sh Government Defeated- 2017 Chief of the Armed eikh Professor Forces, His Alhaji Dr Excellency Yahya A.J.J. Jammeh Babili Mansa,

Chief Bridge Builder, Conqueror of Rivers

8. South Head of State Jacob Zuma Mr President, The son of Africa and Commander in Gcinamazwi. (SA) Government Recalled 2018 Chief of the Armed Forces He has a praise poet who has launched a book Essence of Zuma by Nomkelemane Langa).

9. Central Head of State Jean Bedel Bokassa President, and later Emperor of Africa and King, Emperor Central Africa Republic Government by the will of the Central African people, united within the national political party, the MESAN (Empereur de Centrafriquep ar la volonté du peuple Centrafricain, Page 26 of 58

uni au sein du parti politique national, le MESAN)

Source: Ongoing Research at Sihanya Mentoring and Innovative Lawyering on Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa (CODRALKA), 2020, Volumes 1 & 2….; To cite other sources as footnote to the text (annotated text or matrix).110

The titles of the Presidents, Deputy Presidents (DP) and Prime Ministers tend to vary in the following four contexts. First, constitutional text principally refers to the President or Prime Minister as President or Prime Minister, and only rarely as Commander-in-Chief or Head of State.111

Second, the political and public discourses have various titles for President or Deputy President and Prime Minister and this usually praise or deride them.

Third, diplomatic discourse tends to be polite, and even verbose, for example, HE and Rt Honourable.

Fourth, a scholarly and academic discourse uses the constitutional titles like President in the first instance, and subsequently uses Mr or Ms, or simply the name without a title. This is also partly because (law) scholars and academics are (supposed to be) engaged in an evaluative exercise rather than sycophancy or praise (panegyric) poetry112 or sycophancy. And in any event, no human is “excellent,”113 Or a redeemer (or messiah)… Significantly, governance and socio- economic injustices and suffering have encouraged apocalyptic or messianic politics….114

110 See also Chapters 20 CODRALKA II on Assessing Kenyan and African Presidents. 111 Where the President uses Commander-in-Chief, they are in the realm of war, military role or intimidation of the public or opponents. For instance, Abraham Lincoln during the American Civil War (1860- ); Kenyatta 1 Kamaliza after JM Kariuki’s assassination (1975), and Kenyatta II in the context of securitization of public life and the public sector…. Cf Makau Mutua (2020) “Stop militarizing civilian life: We have competent wananchi for jobs,” Sunday Nation, Nairobi, May 17, 2020, at https://www.nation.co.ke/oped/opinion/we-have-competent-wananchi-for- jobs/440808-5554668-14f742hz/index.html (accessed 20/5/2020). 112 Panegyric poetry includes praise poetry on living and the dead including ode and eulogy or elegy (mournful….), respectively. Cf Ezekiel Alembi (2002) The Construction of the Abanyole Perceptions on Death Through Oral Funeral Poetry, DataCom, Helsinki, at http://abeingo.com/SUBTRIBE%20DOCS/banyore-alembi.pdf (accessed 20/5/2020); Alembi, Ezekiel (2008) “The Abanyole dirge:’Escorting’ the dead with song and dance,” 38 Folklore: Electronic Journal of Folklore, 7-22. Okot P’Bitek (1974) The Horn of My Love, Heinneman… (including “The inheritor,” “Fire rages at Layima”….)…; Ruth Finnegan (2002) Oral Literature in Africa Oxford University Press… 113 …. 114 …. Page 27 of 58

This reflects the general scholarly and academic tradition whereby authors are initially referred to by their earned titles e.g. Prof or Dr, and subsequently referred to only by their surnames like Nwabueze, Ghai, Shivji, and Sihanya….

9.22 Summary of Findings, Conclusion and Recommendations on the President and the Prime Minister in Kenya and Africa The offices of President and Prime Minister (PM) continue to attract controversy but hardly any transformation or positive change in practice even as they represent the most coveted top executive offices in Kenya and Africa.

The importance attached to these two offices which exist or have existed before and will continue to exist or be debated in the future should inform the research, and discourse and action on the desired design, structure, form and practice of presidential or prime ministerial power in Kenya and Africa.

Comparison of the Presidency; 2010 Constitution vis-à-vis 1969 Constitution115

Under the 1969 Constitution Under the 2010 Constitution 1. Was the Head of State Remains the same 2. Was the Head of Government Remains the same 3. Chaired the cabinet. Remains the same 4. Appointed the members of the cabinet and Appoints the members of the cabinet with the may dismiss them. approval of the National Assembly (NA) and may dismiss them. 5. Appointed the Vice-President (VP) and When standing for election must have a could dismiss him/her. running mate who will become the Deputy President if the presidential candidate is elected. 6. Appointed permanent secretaries. Appoints principal secretaries (PSs) with the approval of the National Assembly (NA). 7. Appointed and removed members of the Does not have these powers. Advisory Committee on the Prerogative of Mercy. 8. Appointed the members of the Electoral Will formally appoint the members of the Commission. Electoral Commission, but these must be approved by the National Assembly, and a law is to prescribe how nominations are to be made (which will probably not give any choice to the President). 9. Appointed the Chief Justice (CJ). Has to appoint the person nominated by the Judicial Service Commission (JSC) provided that person is approved by the National Assembly (NA).

115 Yash Pal Ghai & Jill Cottrell Ghai (2011) Kenya’s Constitution: An Instrument for Change, Katiba Institute, Nairobi, Kenya, at 97. See Chapter1 CODRALKA 1…. To review further…. Typology…. Page 28 of 58

10. Appointed (from among the judiciary) the Appoints two of the 11 members of the JSC only two members of the Judicial Service (who are non-lawyers), and these must be Commission (JSC) who were not ex approved by the National Assembly. officio. 11. Appointed the Attorney-General (A-G). Appoints the Attorney-General with the approval of the National Assembly. 12. Appointed the Controller and Auditor Appoints the Controller of Budget and Auditor General. General (who must be approved by the National Assembly). 13. Appointed the Public Service Appoints the Public Service Commission Commission (PSC). (PSC) with the approval of the National Assembly (NA). 14. Appointed the Commissioner General Appoints the Inspector-General of Police (IG) with the approval of the National Assembly. Appoints 6 of the 9 members of the National Police Service Commission 15. Appointed ambassadors. Appoints ambassadors with the approval of the National Assembly. 16. If so specific provision existed, had the This power is to be of the Public Service power to create offices and appoint to Commission. them and dismiss the appointees. 17. Appointed tribunals to look into the Attorney- General has security of tenure. question of removal of various Parliament initiates process of removal of commissions, the Attorney-General, the commissioners, the Auditor-General and the Controller and Auditor General, and Controller of Budget; the President must decides whether individuals should be appoint the tribunals to look into the question suspended pending inquiry. and decides whether individuals should be suspended. 18. Decided where Parliament sat. Decides only the date of the first sitting of each House after the general election. 19. Could dissolve Parliament any time. Cannot dissolve Parliament. 20. Nominated 12 members of the National Cannot nominate any members of the National Assembly. Assembly. 21. Signed Bills passed by the National Remains the same except that if the President Assembly or could send them back giving fails to sign a law within a time limit, it reasons; if Parliament passed the Bill automatically comes into force. again by two-thirds, the President had to sign it. 22. Could pardon offenders, reduce or remit May carry out these functions only acting in punishments imposed on someone accordance with the advice of the Advisory convicted. Committee. 23. Could bring into effect Part III of the Declares a state of emergency which lapses if Preservation of Public Security Act Parliament does not approve within 14 days. (declaring a state of emergency) (lapses if Parliament does not approve within 28 days). 24. Was Commander-in-Chief of the Armed Remains the same. Forces. Page 29 of 58

25. Not mentioned- presumably a power of Declares war with the approval of the National the President. Assembly. 26. Appoints the Chair of the Commission on Revenue Allocation with the approval of the National Assembly. Appoints the Chair of the Salaries and Remuneration Commission with the approval of the National Assembly.

Source: Yash Pal Ghai & Jill Cottrell Ghai (2011), Kenya’s Constitution: An Instrument for Change, Katiba Institute, Nairobi, Kenya at 97-98. …. To review further…. Typology….

9.23 Deputy President, Vice President, Deputy Prime Minister116 in Kenya And Africa117 How is the office of Deputy President conceptualized, problematized, and contextualized in Kenya and Africa?

9.23.1 Conceptualising the Deputy118 or Vice119 Presidency in Kenya and Africa The Deputy or Vice President is regarded as core to constitutional democracy, inclussion and service delivery in Kenya and Africa. Has the Deputy President delivered in Kenya and Africa? What have been the constraints and opportunities? My overarching argument is that the discourse on the Office of Deputy President vacillates between two experiences: a powerful officer, almost co-President; and a largely ceremonial officer waiting for delegated authority. The third or middle ground is an executive officer who deputises the President and who commands concomitant power and economic resources.

How can Afro Kenyanist constitutional and governance theory, practice and recommendations be applied to reform the office of Deputy President (DP), Vice President (VP) and Deputy Prime Minister(s) (DPMs) in Kenya and Africa? What have been the contribution of the post 2020 debates, including the Building Bridges Initiative (BBI) and the constitutional amendment debates... ?

116 Ibid. Also, Ministry of Finance under Uhuru Kenyatta in 2009 allegedly lost 9.2 Billion of the Supplementary Budget. He termed the 9.2 billion error a “typing error”… See Alphonce Shiundu & Macharia Mwangi (2009) “Uhuru quizzed over Sh9.2b ‘typing error,’” Daily Nation, Nairobi, 11/5/2009, at https://www.nation.co.ke/news/1056-597228-k3hlk2z/index.html (accessed March 27, 2020). 117 This was a stand alone Chapter. It will be a stand alone chapter again as indicated in the footnote just before Chapter 9.14.2…. The Deputy President’s Office is increasingly regarded as much closer to the President’s and remains one of the main offices in the quest for inclusion. In Kenya, the BBI debates talk(ed) of the President, Deputy President, Prime Minister, two Deputy Prime Ministers…. In South Sudan, inclusion took the form of President, 5 Deputy Presidents, Ministers… See Garang A. Malak (2020) “South Sudan President Salva Kiir names full Cabinet,” East African, Nairobi, March 12, 2020, at https://www.theeastafrican.co.ke/news/ea/South-Sudan- Salva-Kiir-names-full-cabinet/4552908-5489284-4gprnbz/index.html (accessed 7/5/2020). 118 Executive Orders of 2013; 2016; 2018; 2019 and, 2020 on the organization of the Government of Kenya; Executive Order No. 3 of 2014 where President Uhuru Kenyatta delegated ten “executive functions” to county commissioners… 119 Ibid… Page 30 of 58

The Deputy President’s office is always debated in the context on at least three related issues: First, whether the Executive is unitary or dual. “Unitary” may mean whether there is only a single head of the executive with both efficient and dignified powers, or whether the two are separated. Unitary may also mean a unitary state (as in Kenya 1967-2011?-13?) vis-à-vis a devolved state, where Executive power is exercised at national and subnational (county, state, provincial or regional levels).

Second, whether that Executive is (pure) presidential, parliamentary or a hybrid.120 And third, the powers and functions of the Deputy President (DP) vis-à-vis the President and/or the Prime Minster (PM), as the case may be. What about Deputy President vis-à-vis Deputy Prime Ministers? Permanent Secretaries? The bureaucracy? The Legislature? The Judiciary?

9.23.2 Deputy President: Qualification, Election and Appointment in Kenya What are the qualifications to be elected or appointed as Deputy President (DP) in Kenya and Africa?

9.23.2.1 Qualifications to be Deputy President (DP) in Kenya According to Article 148(1) of the Constitution, each candidate in a presidential election is to nominate a person as a candidate for Deputy President (DP). For the nomination to be valid, such an individual must be qualified for election as President.121

9.23.2.2 Election or appointment of Deputy President (DP) in Kenya Article 148(3) provides that the Independent Electoral and Boundaries Commission (IEBC) is required to declare the candidate nominated by the person who is elected as the President to be elected as Deputy President (DP).122

Whenever there is a vacancy in the Deputy President’s (DP’s) office, the President may nominate then the National Assembly approves.123

120 The hybrid may be presidential leaning parliamentary or in the middle? 121 That means the Deputy President (DP) must be qualified to contest an MP under Arts. 137 and 99. See discussions on qualification to run for presidency in Chapter 9….above. Cf Chris Cillizza (2020) “The top 10 women Joe Biden might pick as Vice President ranked,” at https://edition.cnn.com/2020/06/11/politics/biden- kamala-harris-keisha-lance-bottoms-val-demings/index.html (accessed 20/6/2020); Giovanni Russonello (2020) “Who’s the best pick for Biden’s running mate? Democrats weigh in,” New York Times, June 9, 2020, at https://www.nytimes.com/2020/06/19/us/politics/biden-vice-president-poll.html (accessed 23/6/2020). 122 See the declaration of election results by the Independent Electoral and Boundaries Commission in 2013 and 2017. Also see the Sreme Court ruling in Raila Odinga & Others v. IEBC & Others, Petition No. 5 of 2013…. 123 Article 149 of the Constitution states, “(1) Within fourteen days after a vacancy in the office of Deputy President arises, the President shall nominate a person to fill the vacancy, and the National Assembly shall vote on the nomination within sixty days after receiving it. (2) If a person assumes office as Deputy President under clause (1), then, for the purposes of Article 148 (8), the person shall be deemed— (a) to have served a full term as Deputy President if, at the date on which the person assumed office, more than two and a half years remain before the date of the next regularly scheduled election under Article 136 (2) (a); or (b) not to have served a term of office as Deputy President, in any other case.” Page 31 of 58

In South Africa, the Deputy President is appointed by the President from among members of the National Assembly and the appointee takes a prescribed oath. The Deputy Presidents of South Africa include, Frederick W. de Klerk,124 Thabo Mbeki, Jacob Zuma, Phumzile Mlambo- Ngcuka, Baleka Mbete, Kgalema Motlanthe,125 Cyril Ramaphosa, and David Mabuza, respectively.126

In Nigeria, the Vice President is elected alongside the President in national elections. The Vice Presidents of Nigeria include, Prof Yemi Osinbajo and Ike Ekweremadu, among others.127

In 2013 and 2017, the Deputy President ran under a joint ticket with the President. And the ballot papers for presidential candidates bore the names of the presidential candidates and their deputies.

The running mate concept is to provide inclusion, legitimacy and popular accreditation for the Deputy President (DP) or Vice President (VP). The DP as President’s running mate may be compared to a DP appointed on the occurrence of a vacancy. In many states, depending on the Executive-Legislative system, the deputy President is a running mate (is part of the pre-election calculation to win elections) in a pure presidential system, to enhance pre- and post-election inclusion and legitimacy….128

A (pure) parliamentary system is assumed to encourage post-election coalition building, inclusion and legitimacy to govern through the Prime Minister, Deputy Prime Ministers, Cabinet Ministers….129

For instance, in the US Vice President (VP) Gerald (Gerry) Ford succeeded Richard M. Nixon upon the latter’s resignation,130 following pressure and planned impeachment following the Watergate Scandal.…...131

On what grounds should a Deputy President (or Vice President) resign or vacate office In Kenya and Africa?

124 He was President during the last years of apartheid and helped dismantle it…. And introduce democracy. He became one of the two DPs to Mandela during the 1994-1996 transition. See…. 125 He acted as President during…. He was a Zuma protégé. 126 …. See also Annex…. on South African Presidents and Deputy Presidents. Cf…. List of heads of State of South Africa…at https://www.google.com/search?q=heads+of+state+of+south+fria&oq=heads+of+state+of+south+fria&aqs=chrome. .69i57j0l7.6681j0j4&sourceid=chrome&ie=UTF-8 (accessed 2/6/2020)…. 127 See also Annex on Nigerian Presidents and Vice Presidents…. 128 …. 129 …. 130 Cf…. List of Presidents of the United States….;…. chronological list of Presidents, First Ladies, and Vice Presidents of the United States….; How the first 10 US Presidents helped shape the role of Nation’s top office…. 131 See also Chapters 9A and 9B CODRALKA 1 on impeachment, vacancy in the office of the President, Vice President (VP) Deputy President (DP)....See also Kathleen Sullivan & Gerald Guther (2010) Constitutional Law. New York: Foundation Press, 17th edition, at...... Page 32 of 58

9.23.2.3 Assumption of Office by the Deputy President in Kenya and Africa The DP is then to be sworn in before the Chief Justice (CJ) or Deputy Chief Justice (CJ) in public (Article 148(4)). The Deputy President-elect assumes office upon taking and subscribing the oath or affirmation of allegiance and the oath or affirmation for the execution of the functions of the office, as prescribed in the Third Schedule.

The oath for the Deputy President reads:

“I, ...... , in full realisation of the high calling I assume as President/Acting President/ Deputy President of the Republic of Kenya, do swear/solemnly affirm that I will be faithful and bear true allegiance to the Republic of Kenya; that I will obey, preserve, protect and defend this Constitution of Kenya, as by law established, and all other laws of the Republic; and that I will protect and uphold the sovereignty, integrity and dignity of the people of Kenya. (In the case of an oath–– So help me God.)”

As provided for in the Constitution and witnessed in 2013 and 2017, the oaths of allegiance for both the President and the DP are exactly the same in terms of wording but there is a difference during the second oath for execution of duties.132 The DP’s second oath is slightly longer (121 words) than the President’s (79 words). This is partly because the Deputy President commits himself to giving the President counsel and advice.133 The President is under no similar obligations….134

What is the effect of this second oath in the context of the Jubilee administration?135 The Deputy President from January 2018,136 and especially from 2019 was increasingly missing in action (MIA) in various presidential functions,….137

9.24 Powers and Functions of the Deputy President in Kenya and Africa Under Article 147 of the Constitution of Kenya 2010, the Deputy President is the constitutional principal assistant (PA)138 of the President and he deputises for the President in the execution of the President's functions.

132 See the Third Schedule to the Constitution. For President: “I, ...... , swear/solemnly affirm that I will truly and diligently serve the people and the Republic of Kenya in the office of the President/ Acting President of the Republic of Kenya; that I will diligently discharge my duties and perform my functions in the Office of President or Acting President of the Republic of Kenya; and I will do justice to all in accordance with this Constitution, as by law established, and the laws of Kenya, without fear, favour, affection or ill-will. (In the case of an oath–– So help me God.)”

133 Ibid. 134 …. 135 See Chapters 4, 9A, 9B, 10…?.; To cite newspapers…. 136 For example, the January appointment of half Cabinet…. 137 or was it absence without leave (AWOL) as claimed? ….; See Moses Odhiambo (2020) “UhuRuto rift widens as DP Ruto misses corona sessions,” Star, Nairobi, March 17, 2020, at https://www.the-star.co.ke/news/2020-03-16- uhuruto-rift-widens-as-dp-misses-from-corona-sessions/ (accessed 8/5/2020); Patrick Lang’at (2020) “Ruto presser leaves Kenyans puzzled,” Daily Nation, Nairobi, April 10, 2020, at https://www.nation.co.ke/news/politics/Ruto- presser-leaves-Kenyans-puzzled/1064-5519606-13cquxez/index.html (accessed 8/5/2020). Page 33 of 58

The Deputy President acts as the President when the President is absent or is temporarily incapacitated, and during any other period that the President decides.139

He is a member of the Cabinet140 and the National Security Council (NSC).141 As a principal assistant to the President, he chairs cabinet meetings and NSC meetings whenever the President is absent. The following roles were assigned to the Office of the Deputy President (ODP) under the President’s “Executive Order” No. 1 of 2018142... William Samoei arap Ruto was appointed the first Deputy President (2013-2017; 2017- ). His office at Harambee House Annex was formerly the Office of the Prime Minister (2008-13). And before that, it was Shell House...Why annex?143 Does it mean the DP’s office is (constitutionally) dependent or annexed to the Office of the President?144 The DP has the official residence which is also the DP’s office in Karen….145

What are the phases of the Deputy Presidency in Kenya from 2013- From 2013 to 2017, it appeared that there was (almost) a co-presidency. First, there was actual and a perception of a measure of portfolio balance in the appointment of Cabinet Secretaries (CSs). For example in most ministries, departments and agencies (MDAs), where President Uhuru Kenyatta’s favourite was a Cabinet Secretary, Deputy President ’s favourite was the Principal Secretaries (PSs) and the vice versa.146

Second, there was also a measure of portfolio balance in the appointment of Principal Secretaries and chairs, Chief Executive Officers (CEOs), and board members of semi-autonomous government agencies (SAGAs), and ministries, departments and agencies (MDAs), Constitutional Commissions and independent offices…. In fact, as at May 2020, the CCIOs and

138 Not personal assistant (PA), even though DP Ruto styled himself as President Kenyatta “mtu wa mkono” (errand boy), above 139 …. 140 Art 152(1) of the Constitution lists the members of Cabinet…“(1) The Cabinet consists of— (a) the President; (b) the Deputy President; (c) the Attorney-General; and (d) not fewer than fourteen and not more than twenty-two Cabinet Secretaries…” 141 Art 240 (2) of the Constitution lists the members of the National Security Council… “(2) The Council consists of— (a) the President; (b) the Deputy President; (c) the Cabinet Secretary responsible for defence; (d) the Cabinet Secretary responsible for foreign affairs; (e) the Cabinet Secretary responsible for internal security; (f) the Attorney- General; (g) the Chief of Kenya Defence Forces; Constitution of Kenya, 2010 145 (h) the Director-General of the National Intelligence Service; and (i) the Inspector-General of the National Police Service…” 142 That “Executive Order” was amended or modified 3 times in 2019, especially with regard to coordination of the all cabinet development committee, and the roles of county and regional development coordination. All these affect the Deputy President (DP) directly and indirectly. How was the Office of the Deputy President addressed in the January and May 2020 revisions? See Chapter 9.14.3 above. 143 See also Chapter 9A…. 9B…. 144 See also Chapter 9A and 9B… above. (to edit that and this part) …. 145 …. 146 For instance, the CS for …..was President Kenyatta’s….. PS for…. Was DP Ruto’s…. Page 34 of 58 regulatory agencies were mainly led by and consisted of Kikuyu and Kalenjin nominees of President Kenyatta and DP Ruto.147

Third, the reporting appeared blurred and both President Kenyatta and Mr William Ruto appeared to play a coordinating function either at the same time or different times. In fact, on many occasions, either spoke for the Presidency then extended to defending the Government or Administration officials on charges of inefficiency, inequity, wastage, corruption, and looting.148

For instance, Ruto responded to ODM leader Raila Odinga’s assertion that Anne Mumbi Waiguru had corruptly appropriated the National Youth Service (NYS) funds.149 DP Ruto said that Anne Mumbi Waiguru (later Mrs Kamotho or Mrs Kamotho Waiganjo) was a hard working Cabinet Secretary (CS). That she was a junior officer in their office. And that anybody raising any issue should address the President or DP Ruto.150 In the (post-handshake and Building Bridges Initiative (BBI)) period from March 9, 2018, co- presidency and sharing of Government power, function, and authority between the President and the Deputy President became more obscure.

Some of the functions previously performed by the Deputy President were assigned to the Cabinet Secretary (CS) for Interior and Coordination of National Government, Dr Fred Okengo Matiang’i nicknamed the “Super CS.” The DP then focused on a few functions of “launching projects,” and presiding over fundraisers151 (harambees in Swahili) especially in churches….152

Cabinet Secretary Matiang’i and his Principal Secretaries (PSs), Dr (Eng) Karanja Kibicho, severally insisted that they were commanded and led by one person, the President, Uhuru Kenyatta.153 What about the January 2020 Cabinet reshuffles by President Kenyatta, was DP

147 Whenever President Uhuru Kenyatta’s favourite was the Chairperson or CEO, DP William Ruto’s was the Deputy and vice versa. For example, the chairs and CEOs of some of the CCIOs and regulatory agencies include:…. Examples in Security, finance, health, agriculture, energy, and the justice sectors include….…. 148 Ruto generally spoke of “the President and I…” 149 Munene Kamau (2015) “Opposition nervous over NYS project, says Ruto,” Standard, Nairobi, 13/7/2015, at https://www.standardmedia.co.ke/mobile/amp/article/2000168986/opposition-nervous-over-nys-project-says- ruto#referrer=https://www.google.com (accessed March 27, 2020) 150 Later, when the disagreed, Ruto said Anne Mumbi Waiguru corruptly swindled NYS but was now cat walking and speaking a lot of English. See Kwendo Opanga (2016) “It is high time Ruto learnt there’s time to speak and time to let things pass,” Daily Nation, 12/11/2016, Nairobi, at https://www.nation.co.ke/oped/opinion/there-is-a-time-to- speak-and-a-time-to-let-things-pass/440808-3450354-6mj40iz/index.html (accessed 20/8/2019). 151 …. 152 …. 153 People Reporter (2019) “Matiang’i fights back over frequent attacks on him, Kibicho by Ruto team,” Peole Daily, Nairobi, November 29, 2019, at https://www.pd.co.ke/news/matiangi-fights-back-over-frequent-attacks-on- him-kibicho-by-ruto-team-15149/ (5/4/2020); James Mbaka (2019) “Are Uhuru, Raila grooming Matiang’i for resident?” Star, Nairobi, December 2, 2019, at https://www.the-star.co.ke/news/2019-12-02-are-uhuru-raila- grooming-matiangi-for-president/ (accessed 5/4/2020). Page 35 of 58

Ruto consulted?154 Is consultation of the Deputy President a constitutional or statutory requirement? Is it only political?

9.24.1 Powers and Functions of the Deputy President (DP) vis-à-vis other offices155 The powers and functions of the President and Deputy President (DP) are subsumed in our discussions in this Chapter,156 and indirectly in subsequent pages which focus on ministries, state departments, constitutional commissions and independent offices.

I adopt a three pronged methodology or approach in analyzing the powers and functions of the President and Deputy President in Executive Order No. 1 of 2018 as amended three times in 2019. The first is that the Deputy President is to deputize the President or exercise delegated powers on a case by case basis or as assigned from time to time.157

The second is to identify the non-delegable functions of the President under the Constitution and infer that the Deputy President cannot perform nor deputize in those functions. For instance, President’s nominal power to appoint the Chief Justice (CJ), Deputy Chief Justice (DCJ) and judges of superior courts.158

The third one is analyzing presidential functions and inferring from history the functions that the Deputy President (DP), Vice Presidents (VPs) and Deputy Prime Ministers (DPMs)159 have performed since independence in 1963.160

The better methodology and approach is to specify in the “Executive Order’’ the powers, functions and roles of President, Deputy President (DP), Prime Minister (PM), Deputy Prime Ministers (DPMs), including the power or functions of “deputizing’’ President and Prime Minister, as the case may be. The debate on the report of the Building Bridges Initiative (BBI) exhibits components of the dilemma between specificity161 and generic162 description of powers and functions…163

In any event, there is need to test the constitutionality, legality, regularity and scope of the functions and institutions that are assigned to the Presidency (President and Deputy President (DP)) in Executive Order No. 1 of 2018.164

154 See Hellen Githaiga (2020) “Uhuru Kenyatta reshuffles Cabinet, names new Ministers,” Business Daily, Nairobi, January 14, 2020, at https://www.businessdailyafrica.com/news/Uhuru-Kenyatta-reshuffles-Cabinet/539546- 5417540-h414euz/index.html (accessed 8/5/2020). 155 This section to be copy-edited to Chapters on President, and on DP with appropriate cross referencing. 156 See Chapters 9A, 9B…..above and below…. 157 …. 158 Arts….134… 159 When Jomo Kenyatta was Prime Minister, Jaramogi Oginga Odinga was Deputy Prime Minister. 160 …. 161 …. 162 …. 163 …. 164 The Schedule of functions and instructions is reproduced in Chapters 1, 5 (Fusion, Separation of powers), 9 above, …. Page 36 of 58

9.2.4.2 Deputy President as acting President in Kenya and Africa Article 147 provides for the functions of the Office of the Deputy President (DP) who is to be the principal assistant of the President. The Deputy President (DP) “shall deputise for the President in the execution of the President’s functions.”165 Furthermore, the Deputy President (DP) “shall act as the President when the President is absent or temporarily incapacitated and during any other period that the President decides.”166

Article 147(3) provides that “subject to Article 134,167 when the President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President. The Deputy President sits on the National Security Council (NSC) (Art 240). Some of the Deputy President’s statutory, administrative, and political powers include being a member of the National and County Government Coordinating Summit (NCGCS),168 Chairperson of the Intergovernmental Budget and Economic Council (IBEC)….169 The DP is also the Deputy Party Leader of Jubilee Party.170

Relocate? How does this compare to the roles of the Governor, vis-à-vis Deputy Governor, and Speaker in the context of the Nairobi City County Government, Governor Mike Mbuvi Sonko’s administration and his arrest on December 6, 2019?171

That means there is no need for a “handing over” ceremony should the President be unable to serve. What is the constitutionality of Uhuru Kenyatta “temporarily stepping down” for William Ruto to attend a hearing at the International Criminal Court (ICC)?172 In 2014, Uhuru Kenyatta

165 For example…. 166 For example…. 167 Article 134 Constitution of Kenya 2010 defines the powers which may not be exercised by a person exercising presidential powers during temporary incumbency,“…(2) The powers referred to in clause (1) are— (a) the nomination or appointment of the judges of the superior courts; (b) the nomination or appointment of any other public officer whom this Constitution or legislation requires the President to appoint; (c) the nomination or appointment or dismissal of Cabinet Secretaries and other State or Public officers; (d) the nomination or appointment or dismissal of a high commissioner, ambassador, or diplomatic or consular representative; (e) the power of mercy; and (f) the authority to confer honours in the name of the people and the Republic.” 168 Section 7-10 of the Inter-Governmental Relations Act. 169 Ss. 7 of Intergovernmental Relations Act…. 170 Se Art. 9 of the Jubilee Party Constitution, Political Parties Act….. 171Abdi Latif Dahir (2019) “Nairobi’s gold-loving governor is arrested on corruption charges,” New York Times, 6/12/2019, at https://www.nytimes.com/2019/12/06world/africa/nairobi-goverrnor-mike-mbuvi-sonko.html (accessed March 27, 2020). 172 Cf. Article 146 on vacancy in the office of President states, “(1)the office of President shall become vacant if the holder of the office— (a) dies; (b) resigns, in writing, addressed to the Speaker of the National Assembly; or (c) otherwise ceases to hold office under Article 144 or 145 or under any other provision of this Constitution. (2) When a vacancy occurs in the office of President— (a) the Deputy President shall assume office as President for the remainder of the term of the President; or (b) if the office of Deputy President is vacant, or the Deputy President is unable to assume the office of President, the Speaker of the National Assembly shall act as President and an election to the office of President shall be held within sixty days after the vacancy arose in the office of President,” and Article 147 on functions of the Deputy President (DP) states, “(1) The Deputy President shall be the principal assistant of the President and shall deputise for the President in the execution of Constitution of Kenya, 2010 87 the President’s functions. (2) The Deputy President shall perform the functions conferred by this Constitution and any Page 37 of 58

“officially” handed over power to William Ruto before attending his case at the International Criminal Court (ICC). The President was quoted thus:

“Let it not be said that I'm attending the status conference as the President of Kenya. Nothing warrants my being in court. I will go to The Hague on Wednesday, not as President of Kenya. I invoke Article 147 by appointing Deputy President William Ruto acting President of Kenya...”173

Was this abdication? There was proposed litigation which did not happen partly because the leader was kidnapped….174

The Deputy President or the National Assembly , as Acting President has limited powers. Article 134 of the Constitution provides for exercise of presidential powers during temporary incumbency.175 It provides that:

“(1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President - (a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected President assumes office; or (b) while the President is absent or incapacitated, or at other times contemplated in Article 147 (3), may not exercise the powers of the President specified in clause (2)

Moreover,

(2) The powers referred to in clause (1) are-- (a) the nomination or appointment of the judges of the superior courts (b) the nomination or appointment of any other public officer whom this Constitution or legislation requires the President to appoint (c) the nomination or appointment or dismissal of Cabinet Secretaries and other State or Public officers; (d) the nomination or appointment or dismissal of a high commissioner, ambassador, or diplomatic or consular representative (e) the power of mercy; and (f) the authority to confer honours in the name of the people and the Republic.”

It appears from these provisions that indeed, it was constitutional for the Deputy President (DP) to act as President in period when President Uhuru Kenyatta was attending the ICC cases.

other functions of the President as the President may assign. (3) Subject to Article 134, when the President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President. (4) The Deputy President shall not hold any other State or public office.” 173 Geoffrey Mosoku (2014) “President Uhuru Kenyatta’s ICC shocker as Deputy President William Ruto gets power to act,” The Standard, Nairobi, 7/10/2014, at https://www.standardmedia.co.ke/article/2000137340/uhuru-s- icc-shocker-as-ruto-gets-power-to-act (accessed 6/12/2019)…. 174 …. 175 See presidential powers under Chapter 9A and 9B….above….. Page 38 of 58

However, there was no need for any ceremony or ritual for President Kenyatta to “hand over.176” Handing over would mean a kind of abdication or resignation at worst, or it would be an otiose process; surplusage….

Remarkably, it is clear that the President ought to have resigned from office while the International Criminal Court (ICC) criminal charges were pending. This is based on the text of Chapter 6 of the Constitution of Kenya 2010 on Leadership and Integrity, and in light of the post 2018 High Court jurisprudence177 on leaders “stepping aside” or being suspended when facing corruption charges [and serious criminal charges] in court.

Significantly, both the President and his Deputy ought not to have been cleared to vie in the first instance.178 The whole concept of President Uhuru Kenyatta temporarily “stepping down” for Deputy President Ruto was therefore not founded on the clear constitutional text or tenets on integrity.

As a state officer, the Deputy President (DP) is not to hold any other State or public office.179

A major debating point on Deputy President (DP) Ruto is being linked to corruption scandals, including Arror and Kimwarer Dams,180 Galana Kulalu irrigation project,181 the KES 28 Billion Moi Teaching and Referral Hospital;182 Weston Hotel scandal,183 the 39 Billion firearms scandal

176 Benard Namunane (2014) “Uhuru Kenyatta hands over power to Willliam Ruto ahead of ICC date,” Daily Nation, Nairobi, October 6, 2014, at https://www.nation.co.ke/news/politics/Uhuru-Kenyatta-William-Ruto- Handover-Power/1064-2477524-15b7ohoz/index.html (accessed 5/4/2020). 177 Moses Kasaine Lenolkulal v. Director of Public Prosecutions Criminal Revision 25 of 2019 [2019] eKLR. (per Justice Mumbi Ngugi; followed in Republic v. Ferdinand Waititu; Republic v Ethics and Anti-Corruption Commission & Another; Mike Mbuvi Sonko &Another (Interested Parties) Ex parte Paul Ndonye Musyimi (2020) eKLR; 178 See Chapter 4 above on …. 179 See articles 73-80, Chapter 6 of the Constitution. Article 260 defines State and public office as follows: “State officer” means a person holding a State office.” “Public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; (problematic). See also Chapter 14 of CODRALKA 1 on Administrative Bureaucracy and Regulatory Process and Justice in Kenya and Africa: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration (CPSB, County Secretary) in Kenya and Africa Chapter 5 of CODRALKA 2 on Public Finance and Administrative Bureaucracy. 180 Mathews Ndanyi (2019) “Raila tells off DP Ruto allies for defending Arror and Kimwarer suspects,” Star, Nairobi, July 27, 2019, at https://www.the-star.co.ke/news/2019-07-27-raila-tells-off-dp-ruto-allies-for-defending- arror-and-kimwarer-suspects/ (accessed 5/4/2020). 181 Dauti Kahura (2019) “Lies, dam lies, and intrigues: The Arror and Kimwarer saga,” Elephant, Nairobi, April 11, 2019, at https://www.theelephant.info/features/2019/04/11/lies-dam-lies-and-intrigues-the-arror-and-kimwarer- dams-saga/ (accessed 5/4/2020). 182 David Mwere (2015) “DP Ruto linked to Sh28 billion Eldoret hospital project,” Star, Nairobi, May 8, 2015, http://www.the-star.co.ke/news/dp-ruto-linked-sh28bn-eldoret-hospital-project#sthash.dmiOXGeb.dpbs (accessed 16/6/15). 183 See matrix and table on corruption scandals under Presidential and Premier Administration in Kenya and Africa in earlier Chapters 3 on Constitutional values, principles, policy: and culture: Agency, structure, politics and culture in Kenya and Africa at Chapters 19? (On Presidents and DPs of Kenya and Africa Assessed: Kenyatta 1, Moi, Page 39 of 58 involving the Deputy President (DP’s) Harambee House Annex Office and former Sports Cabinet Secretary (CS) Rashid Echesa.184

This allegedly led to the murder of Kipyegon Kenei, an Administration Officer attached to the DP Harambee House Annex.185 DP addressed the mourners emotionally and at length on what he deemed to be the frustrations of “the system.” Ruto seasonally stated:186 “You may have the System.... I’m the Deputy President, and therefore I speak from full advantage of knowledge as the holder of such an office.” 187

Remarkably, there is also the 3, 000 acre Ruai Dumpsite land grabbing case.188

The Deputy President (DP) has posed as a “hustler,” while having interests in high profile business enterprises. Like President Uhuru Kenyatta, these include business interests in the media, in the hotel industry (especially Weston Hotel…), and real estate….189

The other debating point is on his constitutional role as a “principal assistant” of the President and the move by Uhuru Kenyatta to give more executive functions and roles to Cabinet Secretary (CS) for Interior and National Coordination, Fred Matiang’i “to the detriment” of his Deputy Ruto.

What happens if the President does not assign his Deputy roles as contemplated in Article 147(2) of the Constitution? Article 147(2) provides that “the Deputy President shall perform the functions conferred by this Constitution and any other functions of the President as the President may assign.”

Kibaki and Kenyatta II and Beyond and Chapter 20? On Assessing Deputy Presidents, Vice Presidents, Deputy Prime Ministers)…. 184 Sharon Maombo (2020) “Echesa was at Ruto’s office for over an hour, not 23 mins - Kinoti,” Star, Nairobi 5/3/2020 at https://www.the-star.co.ke/news/2020-03-03-echesa-was-at-rutos-office-for-over-an-hour-not-23-mins- kinoti/ (accessed March 27, 2020)…. 185 Cyrus Mbau (2020) “DP Ruto office guard in Sh 39B fake arms probe found dead,” Standard Digital, Nairobi, February 21, 2020, at https://www.standardmedia.co.ke/article/2001361235/missing-ruto-office-guard-found-dead (5/4/2020). 186 Okech Kendo (2020) “Ruto ready to fight ‘the system’” Star, March 11, 2020, at https://www.the- star.co.ke/opinion/columnists/2020-03-11-ruto-ready-to-fight-the-system/ (accessed 2/6/2020). (on ‘deep state’ and ‘system’…) to discuss this in Chapter 5A- deep state… system…. 187 Okech Kendo (2020) “Ruto ready to fight “the system”” Star, Nairobi, March 11, 2020, at https://www.the- star.co.ke/opinion/columnists/2020-03-11-ruto-ready-to-fight-the-system/ (accessed 23/6/2020). 188 Vincent Achuka (2020) “Ruai land: Evictions start as Ruto denies ownership,” Nation, May 1, 2020, at https://www.nation.co.ke/news/Evictions-from-Ruai-land-start-/1056-5538984-147lanaz/index.html (accessed 8/5/2020). See also Josphat Thiong’o (2020) “State reveals more grabbed Nairobi land after Ruai sewer saga,” Standard Digital, April 27, 2020, at https://www.standardmedia.co.ke/article/2001369284/state-reveals-more- grabbed-nairobi-land-after-ruai-sewer-saga (accessed 8/5/2020).... 189 Did Ruto’s associates lease houses to police? See Kichumba Some & Nyaboga Kiage (2018) Ruto to lose millions of shillings in rent as new police housing plan comes into force,” Daily Nation, November 4, 2018, at https://www.nation.co.ke/news/Ruto-to-lose-millions-of-shillings-in-rent--police-housing-plan/1056-4835806- 73n66w/index.html (accessed 5/4/2020)…. Page 40 of 58

What specific functions of the Deputy President (DP) have been conferred by the Constitution? Can those functions be performed without the President’s delegation/or consent?

Deputy President Ruto in the post 2017 elections referred to the DP as “mtu wa mkono wa Rais,” the President’s handiman or errand boy.190 The DP used this rhetoric to criss cross cut the country using public funds in the pretext of launching or supervising Government “development” projects.191

9.25 Rights and Liberties of the Deputy President (DP) in Kenya and Africa The Deputy President enjoys the rights and liberties under Chapter 4 of the Constitution, as well as other constitutional, statutory and regulatory provisions that define rights and liberties for Kenyan citizens or individuals generally. These fall under a three pronged typology, at least.

First, some of the DP’s rights and liberties are limited with respect to citizens generally.

Second, some are limited with respect to the DP by virtue of the DP’s state or public office.192

Third, some are super rights and liberties; they are absolute. These are provided for in Article 25 which states:

“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited–– (a) freedom from torture and cruel, inhuman or degrading treatment or punishment; (b) freedom from slavery or servitude; (c) the right to a fair trial; and (d) the right to an order of habeas corpus.”

How have the Deputy President and Vice Presidents exercise their rights and liberties? How have the Deputy President’s or Vice President’s exercise of rights and liberties been regulated, contested and litigated?

9.26 Privileges and immunity of the Deputy President in Kenya and Africa The Deputy President (DP) enjoys a lot of privileges associated with the office of Deputy President, as a state officer, or a public officer. The Deputy President enjoys allowances, Government accommodation in the Karen official home193 of the Deputy President, transport194 and easier passage through traffic.195

190 Justus Wanga (2018) “I’ll run over anyone in my way, warns William Ruto,” Daily Nation, Nairobi, December 12, 2020, at https://mobile.nation.co.ke/news/politics/I-ll-run-over-anyone-in-my-way--warns-William- Ruto/3126390-4877568-hjtjol/index.html (accessed 5/4/2020). 191 …. 192 For instance, the President, Deputy President (DP) and other Public Officer(s) generally should expect to be scrutinized and criticised more than on ordinary citizen.... For instance, the DP cannot serve in another (Public) Office of Profit? Chapter Six of the Constitution. 193 See Moses Nyamori (2020) “Governor Kiraitu narrates how plot to take Moi land was stopped by nairobi,” Standard Digital, Nairobi, at https://www.standardmedia.co.ke/article/2001359511/day-kibaki-saved-moi-from- Page 41 of 58

The DP’s home office is in Karen. It was completed in 2013. The first Vice President’s house was Kabarak gardens. Once Jaramogi Oginga Odinga resigned and was replaced by Daniel Arap Moi. President Jomo Kenyatta allegedly gifted theVP home to VP Moi…. 196

9.26.2 Immunity of the Deputy President in Kenya and Africa Under the Constitution, the Deputy President does not generally enjoy immunity from criminal or civil proceedings at all to the level enjoyed by the President…..

The Deputy President (DP) only enjoys limited and temporary immunity when acting as President, and in good faith?197 Are there any special immunities that the Deputy President (DP) enjoys as acting President?198

Remarkably, DP Ruto has been the subject or defendant of numerous criminal allegations199 and civil claims or cases.200 DP Ruto and his supporters claimed there were plans by some Cabinet Secretaries to assassinate him….201

One of his advisors, Mr Denis Itumbi, was prosecuted in court on allegations of writing a letter to that effect, and even claiming he, Itumbi, had a tape (verify)….202

eviction (accessed 8/5/2020); Cyrus Ombati (2020) “Detectives revisit Kenei’s house as probe goes on,” Standard, May 25, 2020, at https://www.standardmedia.co.ke/article/2001372631/police-revisit-kenei-s-house (accessed 2/6/2020). 194 …. 195 This is problematic… Compare USA, UK, Europe generally, vis-à-vis Nigeria, South Africa, Uganda, Tanzania….cf. the debate on traffic clearances for the Chief Justice and Deputy Chief Justice in Kenya in 2019…See Cyrus Ombati (2019) “Police boss issues new traffic rules for selected VIPs,” The Standard, Nairobi 29/5/2019 at https://standardmedia.co.ke/article/2001327739/police-bss-issues-new-traffic-rules-for-selected-vips (accessed March 27, 2020)…. 196 Before VP Jaramogi, it was home of …., a colonial officer… Personal Communication Sunday 13/6/2020…. 197 ….See John Ngirachu (2016) “LSK says Bill to confer DP immunity unconstitutional,” Daily Nation, Nairobi, 19/4/2016 at https://mobile.nation.co.ke/news/LSK-trashes-Linturi-Bill-on-the-DP-immunity/1950946-3165310- bp5l1yz/index.html (accessed March 30, 2020); David Ohito (2016) “Plot to give Deputy President William Ruto immunity declared unconstitutional,” Standard, Nairobi, 19/4/2016 at https://www.standardmedia.co.ke/article/2000198726/plot-to-give-dp-ruto-immunity-declared-unconstitutional (accessed March 30, 2020); Africa Check (2020) “Kenya’s house speaker Muturi didn’t claim deputy president Ruto can’t be prosecuted,” Africa Check, 18/3/2020 at https://africacheck.org/fbcheck/kenyas-house-speaker-muturi- didnt-claim-deputy-president-ruto-cant-be-prosecuted/ (accessed March 30, 2020) 198 …. 199 See Republic v. Denis Itumbi. See Mary Wambui (2020) “DP Ruto’s office staff to be quizzed in Kenei murder probe,” Daily Nation, Nairobi, March 10, 2020, at https://www.nation.co.ke/news/DP-Ruto-office-staff--to-be- quizzed-in-Kenei-murder-probe/1056-5484962-siih3/index.html (accessed 8/5/2020); Anita Chepkoech (2020) “Policeman at Ruto’s office when echesa visited found dead,” Daily Nation, Nairobi, February 20, 2020, at https://www.nation.co.ke/news/Ruto-office-policeman-found-dead/1056-5462966-qlo3op/index.html (accessed 8/5/2020). 200 …. 201 …. 202 …. Page 42 of 58

And in February 2020, an officer in the DP’s office was killed amidst claims of involvement in a .KES 39B arms purchase fraud…. The DP’s office was declared a crime scene….

7.27 Vacancy in the Deputy President’s (DP’s) office in Kenya and Africa How does the office of the Deputy President become vacant?

9.27.1 Specific and generic cause of vacancy in Deputy President’s office in Kenya and Africa First, on the ground of physical incapacity to perform the functions of the office.203

Second, on the ground of mental incapacity to perform the functions of the office.204

Third, on impeachment. Fourth, in any of the generic circumstances that give rise to a vacancy in public office: resignation, death, bankruptcy, etc.205

9.27.2 Deputy President’s resignation in Kenya and Africa Vacancy in the DP’s office through resignation is controversial in Kenya and Africa. There can be voluntary versus forced resignation or “retirement in the public interest’’ in Kenya and Africa….. In 2019-2020, there were ongoing debates on the Deputy President’s (DP’s) resignation in the context of Kieleweke206 v. Tanga tanga.207

How do the DP Ruto debates relate to debates on Vice Presidents (VPs) and Deputy Presidents (DPs) who resigned voluntarily or involuntarily in Kenya and Africa including Jaramogi Oginga Odinga, , Mwai Kibaki….208 What were the reasons or excuses given for their resignation?209

9.27.3 Deputy President’s impeachment and record in Kenya and Africa The Deputy President (DP) may be impeached for any three reasons. First, on the ground of a gross violation of a provision of the Constitution210 or any other law.211 Second, where there are

203 …. 204 Although the foregoing functions are placed under one ground, they are two. 205 See establishment of other public offices under the Constitution and in the various statutes. 206 Let it be clear; be known clearly…. 207 Swahili word for loitering…. Cf zurura and Kenya’s slang: mangamanga …. The name issued by detractors and supporters DP Ruto and President Kenyatta’s reference to DP Ruto thus…. See….Hillary Orinde (2020) “Resign! Uhuru-Raila MPs tell William Ruto,” Standard, Nairobi 11/3/2020, at https://www.standardmedia.co.ke/mobile/amp/article/2001363835/resign-uhuru-raila-mps-tell-william- ruto#referrer=https://www.google.com (accessed March 27, 2020) 208 See Chapter 20 on Assessing Deputy Presidents, Vice Presidents, Deputy Prime Ministers in Kenya and Africa 209 …. 210 What is gross? 211 Signing of the Division of Revenue Bill without mediation committee? Page 43 of 58 serious reasons212 to believe that the Deputy President has committed a crime under national or international law;213 or for gross misconduct.214 First, what claims of gross violation of the Constitution have been made against DP Ruto?215 Second, what constitute “serious reasons to believe” that DP Ruto has committed a crime….or guilty of gross misconduct? This ground has three disjunctive components that need to be unpacked. First, a crime under international law. Second, a crime under international (what of national) law. Third, gross misconduct….216

The Deputy President’s office may become vacant in about four disjunctive circumstances. Under Article 150:

“(1) The Deputy President may be removed from office— (a) on the ground of physical or mental incapacity to perform the functions of the office; or (b) on impeachment— (i) on the ground of a gross violation of a provision of this Constitution or any other law; (ii) where there are serious reasons to believe that the Deputy President has committed a crime under national or international law; or (iii) for gross misconduct.

Article 150 continues:

(2) The provisions of Articles 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the Deputy President.”

Fourth, the provisions of Arts. 144 and 145 relating to the impeachment or removal of the President shall apply, with necessary modifications (mutandis mutatis), to the removal of the Deputy President.217

March 2019 witnessed the debate on Senate Minority Leader, James Orengo’s218 proposal to impeach the Deputy President. Mr Elijah Memusi Kanchory, Member of Parliament (MP) for

212 What is serious?.... 213 Cf. Article 2 of the Constitution; the indictment and ICC debate(s)…See Daisy Maritim (2020) “There is so much fodder for threats to impeach Ruto,” Standard, Nairobi, 1/2/2020, at https://www.standardmedia.co.ke/article/2001358770/there-is-so-much-fodder-for-threats-to-impeach-ruto (accessed March 30, 2020); Koki Muli (2012) “ICC cases give enough ground for impeachment of sitting president,” Standard, Nairobi, 10/11/2012, at https://www.standardmedia.co.ke/article/2000070313/icc-cases-give- enough-ground-for-impeachment-of-sitting-president/?pageNo=2 (accessed March 30, 2020); Allan Kisia (2020) “Ruto allies: DP is going nowhere, we dare you to remove him,” Star, Nairobi, 12/3/2020 at https://www.the- star.co.ke/news/2020-03-12-ruto-allies-dp-is-going-nowhere-we-dare-you-to-remove-him/ (accessed March 30, 2020). 214 What is gross misconduct? 215 …. 216 Standard (2020) “Uhuru stops plan to impeach Ruto,” Standard, May 23, 2020, at 1, 4, …., at https://www.standardmedia.co.ke/article/2001372333/uhuru-stops-plot-to-impeach-ruto (accessed 2/6/2020); Otieno Otieno (2020) “Impeachment scare for Ruto in Kindiki ouster,” Daily Nation, Nairobi, May 23, 2020, at https://mobile.nation.co.ke/blogs/Impeachment-scare-for-Ruto-in-Kindiki-ouster/1949942-5561808-format-xhtml- u7ur46z/index.html (accessed 2/6/2020). 217 Article 144 addresses removal of the President on grounds of incapacity; Article 145 is on impeachment of the President. Page 44 of 58

Kajiado Central (ODM Party) also reportedly spoke of having the Deputy President (DP) Ruto impeached.219

The office of the Deputy President (DP) also falls vacant when the Deputy President (DP) assumes the office of the President following a vacancy in the office of the President.

9.28 The Vice President220 in Kenya and Africa This office was provided for under s. 15 of the 1969 Constitution. It is important to note that it has been scrapped and replaced with the office of the Deputy President (DP) (Arts 147; 148). The change was effected after the March 4, 2013 General Elections.

9.28.1 Appointment of VP in Kenya and Africa Under s. 15 of the 1969 Constitution, the Vice President (VP) was appointed by the President at his discretion.221 But the VP could only be appointed from one of the elected MPs. An acting President did not have the power to appoint a Vice President (VP). The Vice President (VP) is the principal assistant to the President in the sense of a constitutional assistant – not a personal assistant.

As a matter of practice, and not constitutional text, Vice Presidents (VPs) have been ministers with specific portfolios or responsibilities. On a few occasions, Vice Presidents (VPs) have been ministers without portfolio.222

In Nigeria, the Vice President is elected alongside the President in national elections. A person is eligible for the office of Vice President if he or she is a citizen of Nigeria by birth, at least 40223 years of age, is a member of a political party and is sponsored by that political party.224

218 Orengo is Siaya Senator. See Benjamin Muriuki (2019) “Orengo: This is why Ruto should be impeached,” Citizen Digital, Nairobi, at https://citizentv.co.ke/news/orengo-this-is-why-ruto-should-be-impeached-237820/ (accessed 28/3/2019). At the time, ODM Minority national Assembly leader said there were some plans…. In 2010 Senator Orengo talked of DP Ruto’s impeachment. See Lameck baraza (2019) “Orengo to sponser impeachment motion against Ruto,” Star, Nairobi, march 25, 2019, at https://www.the-star.co.ke/counties/nyanza/2019-03-25- orengo-to-sponsor-impeachment-motion-against-ruto/ (accessed 8/5/2020)…. 219 ….Kenya Today (2019) “Bombshell: Petition to remove DP Ruto from office filed in Parliament by Hon Kamotho,” Nairobi, 9/3/2019 at https://www.kwnya-today.com/opinion/bombshell-petition-to-remove-dp-ruto- from-office-filed-in-parliament-by-hon-kamotho (accessed March 27, 2020); Tom Matoke & Wycliff Kipsang (2020) “Ruto ‘stays focused,’ says impeachment plot will backfire,” Daily Nation, Nairobi 13/3/2020 at https://www.nation.co.ke/news/politics/Impeachment-plot-doomed-to-fail-says-Ruto/1064-5489828- 8n0c1b/index.html (accessed March 27, 2020)…. 220 Vice President (VP) or veep? Some African states that still have Vice President(s). Cf. Deputy President (DP) in Kenya(DP William Ruto, 2013-present) to Deputy President and Vice President VPs in states like Nigeria (Yemi Osinbajo), South Africa, Uganda (Edward Ssekandi), Tanzania (Samia Suluhu), Ghana(Mahamudu Bawumia), Zimbabwe (Constantino Chiwenga; Kembo Mohadi), South Sudan, Zambia (Inonge Wina), …. 221 What impact did the Constitution of Kenya (Amendment) Act 2008 and National Accord and Reconciliation Act 2008 (NARA) have on this? Orengo: Vice President (VP) carries PS briefcase in 2008? 222 Jaramogi Oginga Odinga who had been Interior Minister (?), later served as Vice President (VP) and Minister without portfolio; and as Minister for Home Affairs. The Late Kijana Wamalwa first served as Vice President (VP) and Minister without portfolio. His supporters like Hon Fred Gumo, the Westlands MP, complained Kibaki appointed him to Ministry of “Reconstruction,” whatever that meant. Implications? Government’s Statement? Result? Page 45 of 58

In Tanzania, there are two Vice Presidents who are called the First Vice President and the Second Vice President. Each one of these Vice Presidents becomes the chief assistant to the President on all matters of the Union Republic in general. The person chosen to be President of Zanzibar will be among the two Vice Presidents while the Person chosen to be Prime Minister of the Union Government will be the other Vice President among the two Vice President.225

In Uganda, the Vice President is appointed by the President with the approval of Parliament by a simple majority.226 He deputises the President in his functions.227 Below the Vice President is the Prime Minister who is Co-Coordinator of Government and Head of Cabinet in Parliament.228

In the Grand Coalition Government, there was a debate on the roles of the VP ( of the PNU side) vis-à-vis the Minister of Water ( of ODM).229 There was also a debate on portfolios between the Vice President (VP) and the Minister of Medical Services, and who was Prof Anyang’ Nyong’o of Orange Democratic Movement (ODM).

Remarkably, up to 2008, the Vice President (VP) had been the Leader of Government Business in Parliament. Some of the powers are arguably captured by the Prime Minister’s constitutional power as the Coordinator and Supervisor of Government functions under ss. 3, 15(a), of the Constitution and the National Accord and Reconciliation Act 2008 (NARA). Practice in the 2008-2013 period also indicated that the Prime Minister (PM) made authoritative statements on the entire Government in and outside the House.230

223 Under the 1969 Constitution of Kenya, the President had to be at least 35 years of age. There was no such requirement for Vice President (VP). There was an (academic? theoretical? hypothetical?) argument: suppose there a coup in the Office of the President. Could and under 35, Vice President (VP) secure a maximum of 90 as acting President? Could such a Vice President (VP) vie and be elected President? 224 Section 142 of the Constitution of the Federal Republic of Nigeria states, “… (1) In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid.” 225 Section 47 of the Constitution of the Republic of Tanzania states, “… (3) A person shall be nominated to contest for the office of Vice President on the basis of the principle that where the President of the Untied Republic hails from one part of the United Republic, then the Vice-President shall be a person who hails from the other part of the Union.” 226 Article 108 of the Constitution of Uganda states, “… (2) The President shall, with the approval of Parliament by a simple majority, appoint a Vice President.” 227 Ibid. 228 Ibid. 229 What were the issues? See Standard (2009) “Coalition split by PM’s claims against Kibaki,” Nairobi, 12/4/2009, at https://www.standardmedia.co.ke/article/1144011326/coalition-split-by-pm-s-claims-against-kibaki (accessed March 27, 2020); That Ms Charity Ngilu had “provoked” the Vice President, Kalonzo Musyoka during one of her addresses in Mr Musyoka’s Mwingi North Constituency. See Kitavi Mutua (2011) “Controversy is Ngilu’s black twin sister,” Daily Nation, Nairobi 30/7/2011, at https://www.nation.co.ke/news/politics/Controversy-is-Ngilu-s- black-twin-sister-/1064-1210602-11a9577z/index.html (accessed March 30, 2020). 230 See the various editions of the Presidential Circulars on the functions and structure of Government. Page 46 of 58

Speaker Kenneth Marende (formerly of ODM) assumed the office of Leader of Government Business (and hence chair of the powerful House Business Committee (HBC)). Some called that Solomonic. Was it? It contravened the fundamental doctrine of separation of powers and checks and balances, or the balance of power because the Head of the Legislature was also now Head of Executive in the House.231 A political compromise later made the Vice President (VP) the Leader of Government Business.232

9.28.2 Vacancy in the Vice President (VP’s) office in Kenya and Africa The Vice President (VP’s) office became vacant under the 1969 Constitution in at least 5 major contexts. First, dismissal by the President (s. 15) e.g. Prof 2002. Was 1997-1999 a dis-appointment or dismissal of Prof George Saitoti? Yes. But it was unconstitutional for President Moi to administer Kenya without a Vice President: “There shall be a Vice President in Kenya, who shall be appointed by the President.”233

Second, whenever Vice President (VP) ceases to be an elected Member of Parliament (MP) except through dissolution of Parliament. What is the relevance of the experiences of Arthur in 2007/08,234 and in 2002/03….?235

Third, whenever any other person has been elected to the office of the President other than the person who appointed the Vice President (VP); Daniel Arap Moi (1978).

Fourth, upon resignation by the Vice President (VP). Examples include Oginga Odinga (1966), Joseph Anthony Zuzarte Murumbi (1967), Josephat Karanja (1989). Is (en)forced resignation dismissal or disappointment?236

Fifth, upon death of the Vice President (VP) e.g. Kijana Wamalwa (August 2003).

Sixth, upon imprisonment (for how long?).237

Seventh, what explains Mwai Kibaki’s seeking, ceasing to be Vice President and appointment as Health Minister after 1988 General Elections?238

231 See Chapter 5 CODRALKA 1; Chapter 3 CODRALKA 2. 232 Beauttah Omanga (2010) “Applause as VP reappointed Leader of Government Business,” The Standard, Nairobi, 12./8/2010, at https://www.standardmedia.co.ke/article/2000015621/applause-as-vp-reappointed-leader-of- government-business (accessed 28/3/2019). 233 Sec 15 of the 1969 Constitution. See also discussion of Prof George Saitoti’s reappointment as Vice President (VP) as one of Moi’s unconstitutional roadside directives. See Chapter 6 on powers and mandate of the Executive... 234 Moody Awori served as VP from 2003 to 2008, having lost the Funyula Constituency Seat in the December 2007 General Electsions…. 235 (Wycliffe) Musalia Mudavadi served as VP for the shortest period and lost his Sabatia Constituency seat as a sitting VP in the December 2002 General Elections. He had been appointed after the dissolution of Parliament. Constitutionality of appointment? See Chapter 19 on Assessing DPs and VPs in Kenya and Africa…. 236 …. 237 Must it be on the generic or standard rule in appropriate cases: for at least 6 months; for a misdemeanour; and where there is no option of fine? Page 47 of 58

9.28.3 Vice President as Acting President in Kenya? Under the 1969 Constitution of Kenya, there were at least two questions. First, whether an acting President must be expressly appointed by the President. Second, whether the office of an acting President exists in the President’s absence or whether the Vice President (VP) would automatically act whenever the President is absent from the country or was indisposed.

Dr Josephat Njuguna Karanja was hounded out of the Vice President (VP’s) office partly on the allegation that he said he was Ag President when Moi was away.239

In the USA, there was a question whether Alexander Haig Jr., Secretary of State, was an acting President when President Reagan was shot at outside the Hilton Hotel in Washington D.C in 1980. Haig had allegedly said: “The Vice President is on his way here [at the White House] and we are in touch. In the meantime, I am in charge here.” Some Reagan supporters (in Government) were not happy.240

The absence of a constitutional description of the Vice President (VP’s) powers, duties, functions or privileges as Vice President created a lame-duck office that was usually stifled by the President’s inner circle or kitchen cabinet keen not to delegate executive power to anyone other than their own. This phenomenon is common in other jurisdictions.

In Nigeria, there was a constitutional crisis involving the President Musa Umaru Yar’Adua and Vice President (VP), (also Ag President) (later President), Goodluck Jonathan. The President was unable to exercise executive authority because of illness and absence in a Saudi Arabia hospital, but refused to hand over power temporarily to the Vice President.241

In the South African context, President Nelson Mandela and Mangosuthu Buthelezi of the Inkatha Freedom Party had many disagreements in the struggle for independence.242 Mandela appointed Buthelezi acting President. The move was interpreted by analysts to mark a reconciliatory step from Mandela’s end. Mandela was quoted:

238 … 239 See Chapter 9B CODRALKA 1 “Deputy and Vice Presidents in Kenya and Africa Assessed.” And Chapter 10 on Prime Minister and Deputy Prime Ministers in Kenya and Africa…. 240 Haig & Co were trying to deal with the apparent vacuum or interregnum. 241 The Senate passed a resolution authorising Vice President Goodluck Jonathan to act as President. The Nigerian Federal High Court subsequently ruled that “Vice-President Goodluck Jonathan should start exercising the powers of president, pending the time President Umaru Yar’Adua would return from a hospital in Saudi Arabia where he has been undergoing treatment for the past 52 days.” See Mebrim Uchechukwu (2010) “Nigeria: Yar’Adua- Court orders V-P to take charge,” Daily Champion, Nigeria, 14/1/2010, at https://allafrica.com/stories/201001140474.html (accessed March 27, 2020). 242 Suzanne Daley (1997) “Mandela rival takes over (at least for a few days)” New York Times, February 1, 1997, at https://www.nytimes.com/1997/02/01/world/mandela-rival-takes-over-at-least-for-a-few-days.html (accessed 23/6/2020). Page 48 of 58

“He is an able and experienced leader of our country. That was the consideration . . . If it will promote reconciliation we will all be happy. But the reason is that he is a highly competent and experienced leader.”243

The move also brought out Buthelezi’s incompetence (?) in the context of his erstwhile combative and war mongering style.244

To which is the Vice President (VP) or Deputy President (DP’s) office closest in Kenya and Africa historically: Prime Minister or Deputy Prime Minister?

9.29 Deputy President’s Performance in Kenya and Africa In the context of the constitutional, statutory, regulatory, and judicial parameters governing the DP’s office regarding constitutional democracy, integration, inclusion and public service? How will constitutional history and Afro-Kenyanist theory and method Deputy President William Ruto?

9.30 The Deputy President and Vice President, Deputy Prime Ministervis-à-vis President or Premier Relations and Succession in Kenya and Africa In the relevant constitutional texts of Kenyan, Nigerian and South African, the Vice President (VP) is close to the Presidency in terms of temporary or even medium term succession. But there is no guarantee on substantive succession mainly because of three reasons. First, the stipulated presidential electoral process. Second, the politics of small p: intrigue, fitina, propaganda. And third, naiveté of the Deputy President (DP) or Vice President (VP).

Thus there are tensions regarding legacy and succession, including anti-corruption politics between President Kenyatta and Deputy President Ruto.

In the 2018-2020 Ruto also openly and furiously accused presidential appointees245 of frustrating him and other politicians aligned to him.246 And in some cases, he was quoted saying that President Kenyatta, as Jubilee Party Leader, had no mandate to make certain decisions,247 arguing that such powers was vested in “party organs” like National Executive Council and National Governing Council (NGC) in which Ruto was a member as Deputy Party Leader….248

243 Anton Ferreira (1997) “Buthelezi is made acting president in peace move by Mandela,” The Irish Times, Dublin, 1/2/1997, at https://www.irishtimes.com/news/buthelezi-is-made-acting-president-in-peace-move-by-mandela- 1.27841 (accessed 20/8/2019).... 244 Kate Dunn (1998) “Is this Mandela’s Way of Peace? S. Africa Millitary Enter Lesotho,” Christian Science Monitor, 23/9/1998, at https://www.csmonitor.com/1998/0923/092398.intl.intl.3.html (accessed March 27, 2020). 245 …. 246 The main target of Ruto’s attack have been CS Fred Matiang’I, his PS Karanja Kibicho, DCI George Kinoti….James Mbaka (2020) “Why Ruto is no-holds-barred war with Uhuru,” Star, Nairobi, March 10, 2020, at https://www.the-star.co.ke/news/2020-03-10-why-ruto-is-in-no-holds-barred-war-with-uhuru/ (5/4/2020). 247 eg replacement of Jubilee Party National Management Committee (NMC)…. 248 Nation (2020) “Uhuru deals Ruto another deadly blow,” Daily Nation, Nairobi, May 27, 2020, 1, 2, at https://www.facebook.com/DailyNation/posts/uhuru-deals-ruto-another-deadly-blow- httpsnewsstandnationmediacomkenya/10158767203334497/ (accessed 2/6/2020).; Nation Team (2020) “Jubilee Page 49 of 58

Remarkably, the vice presidents under Jomo Kenyatta Kamaliza, Moi and Kibaki had serious challenges due to intrigue or fitina or because of incompetence and or naiveté. David Murathe argued that he would seek the Supreme Court’s interpretation to ensure William Ruto does not run for Presidency in 2022 because “he has shared the presidency.”249

Remarkably, the Constitution does not bar a Deputy President from running for President (however powerful the Deputy President (DP) is perceived to have been.)The struggles between ex-President Olusegun Mathew Okikiola Aremu Obasanjo (1976-79;250 1999-2007)251 and his then Vice President (VP) Atiku Abubakar are instructive.252 President Obasanjo and Vice President Atiku Abubakar were both members of the People’s Democratic Party (PDP).253

They fought on three key issues. First, Obasanjo was interested in and unsuccessfully sought to influence a constitutional amendment for a third term beyond 2007. Second, Atiku was interested in succeeding Obasanjo in the 2007 electoral cycle hence Atiku opposed to the (unsuccessful) third term amendments. Third, the President and Vice President used the courts and legislative assemblies to accuse each other of corruption.254

Eventually, Obasanjo handpicked Umaru Musa Yar’Adua, the sickly brother of Obasanjo’s late friend, Maj Gen Shehu Musa Yar’Adua, who picked Goodluck Jonathan as his running mate.255 Atiku (later) defected to the All Progressives Congress (APC). In the run up to the 2019 elections, Atiku defected to PDP and won its ticket. He was declared runner up to President Buhari who was declared President.256 Atiku filed an election petition following rigging and irregularities257 including Buhari’s suspension of the Chief Justice.258 party purge in high gear as three Senators are quizzed,” Daily Nation, Nairobi, May 27, 2020, at https://www.nation.co.ke/dailynation/news/politics/jubilee-party-purge-in-high-gear-as-three-senators-are-quizzed- 307906 (accessed 2/6/2020). 249 Rushdie Oudia (2019) “Murathe to go to Supreme Court to stop Ruto's 2022 bid,” Daily Nation, Nairobi, 5/1/2019, at https://mobile.nation.co.ke/news/politics/David-Murathe-anything-stop-Ruto-2022/3126390-4922590- fafufo/index.html (accessed 28/3/2019). Cf Mireri Junior (2020) “Murathe: Uhuru will not hand over power to a thief,” Standard, Nairobi, February 29, 2020, at https://www.standardmedia.co.ke/article/2001362368/murathe- president-uhuru-will-not-hand-over-power-to-a-thief (accessed 2/6/2020). 250 Obasanjo served as President following a military coup in 1976. See John Iliffe (2011) Obasanjo, Nigeria and the World, Boydell & Brewe Publishers, United Kingdom… 251 Obasanjo was the elected President following the return to (constitutional) civilian rule. See John Iliffe Obasanjo, Nigeria and the World, op. cit. 252 Obasanjo became President in 1999 following the first presidential elections under the then 1999 Constitution. He had been President following military coup de tat. See John Iliffe Obasanjo, Nigeria and the World, op. cit. 253 Obasanjo was in People’s Democratic Party (PDP) from 1999 to February 2015. 254 Mathew Page (2018) “Anew taxonomy of corruption,” at https://carnegieendowment.org/2018/07/17/new- taxonomy-for-corruption-in-nigeria-pub-76811 (accessed 1/8/2018)…. 255 To discuss Goodluck as an accidental Governor, Vice President, President….cf. the Simon Makonde syndrome... Discuss the supporters and critics views on Goodluck’s performance on ethnic exclusion, corruption, incompetence… Goodluck was so incompetent and corrupt that Ben Nwabueze, Wole Soyinka and others seemed to endorse Buhari or any other person. Soyinka even called Buhari “a born again democrat.” See Nwabueze was clear that Goodluck should not run again because Goodluck had served more than two terms. See…. How do Kenyan Presidents compare to Nigerian Presidents on the foregoing common governance challenges? 256 Yusuf Ali (2018) “2019: PDP rejects automatic tickets for Atiku, other defectors,” The Nation, Abuja, 18/2/2018, at http://thenationonlineng.net/2019-pdp-rejects-automatic-tickets-atiku-defectors/ (accessed 2/8/2018). Page 50 of 58

9.30 President Kenyatta Succession259 and the DP Question in Kenya and Africa The succession of President Kenyatta is closely related to the future of constitutional democracy, the rule of law, electoral justice and shared prosperity, in Kenya and partly the DP Ruto question…260

The former issues animate the BBI discourse and this book.

The DP Ruto question relates to three broad sets of questions. First, what was the DP Ruto’s main motive to run for the DP office? How did the Afro-Kenyanist question feature? What was the publicised vis-à-vis the actual running mate deal261 between Uhuru Kenyatta and William Ruto?262

Second, how did DP Ruto perform in office in the first and second terms having regard to constitutional, legal, and regulatory requirements of the DP’s office? In accordance with the Kenyan legitimate expectation such as impact in the executive, administrative and political office?263 Did DP Ruto and his supporters act too self-entitled to succeed President Kenyatta? Ms Cate Waruguru, a former ally of DP Ruto turned critic has observed thus:

“We elected Uhuru not Ruto. With ur (sic) Asili shenanigans you have just asked for an impeachment and you’ll be served the impeachment hot,…..This is now confirming fears that have been there all along that the DP is running a parallel government to undermine the president.”264

The Standard Newspaper added thus with regards to Cate Waruguru:

257 One of the recurrent issues is Buhari’s qualification to run, given doubts whether he had “A” level education. See Daily Independent (2015) “Nigeria: We Don’t Have Buhari’s Credentials-Army,”Lagos, 21/1/2015, at https://allafrica.com/stories/201501211284.html (accessed March 27, 2020). 258 Aljazeera (2019) “Nigeria's Buhari suspends chief judge; opposition cries foul,” Aljazeera, Nigeria, at https://www.aljazeera.com/news/2019/01/nigeria-buhari-suspends-chief-judge-opposition-cries-foul- 190125183533205.html (accessed 20/8/2019). 259 Supporters of President Kenyatta and DP Ruto argue on who has the numbers…. Who should succeed Kenyatta…. 260 …. 261 Was Ruto owed a succession debt: “10 yangu, 10 William,”? was Ruto paid for his support as alleged? Were the 2013, August 2017, October 2017 presidential elections rigged as David Murathe and Moses Kuria (Gatundu South, MP) variously stated and hence DP Ruto’s contribution to the ticket was minimal? See Allan Mungai (2020) “Cate Waruguru’s road to Damascus moment,” Standard, Nairobi, June 21, 2020, at https://www.standardmedia.co.ke/article/2001375812/cate-waruguru-the-hurricane-from-laikipia (accessed 22/6/2020); Collins Omulo & Justus Ochieng’ (2020) “Jubilee has no automatic candidate for 2022, says Tuju,” Daily Nation, Nation, at https://www.nation.co.ke/kenya/news/politics/jubilee-has-no-automatic-candidate-for-2022- says-tuju-211624 (accessed 22/6/2020); Daisy Maritim (2020) “With Jubilee Asili, Ruto could face the risk of impeachment,” Standard, Nairobi, June 21, 2020, at https://www.standardmedia.co.ke/article/2001375831/with- jubilee-asili-ruto-could-face-the-risk-of-impeachment (accessed 22/6/2020). 262 Was it about peace in Kenya? In the Rift Valley? Between Ruto and Kenyatta factions? Between Kalenjins and Kikuyus? Were historical and lasting justice and peace achieved? 263 …. 264 See Allan mungai (2020) “Cate Waruguru’s road to Damascus moment,” Standard, Nairobi, June 21, 2020, at https://www.standardmedia.co.ke/article/2001375812/cate-waruguru-the-hurricane-from-laikipia (accessed 22/6/2020). Page 51 of 58

“Her gripe, she says, is not with the man, but with his ideologies and method. Those methods, and one carried out by Jubilee elected members in Mt Kenya, include a sustained campaign to paint Uhuru as having done little for the region…. A smug Waruguru, in an interview with Kikuyu vernacular television station Inooro TV said Ruto was an unsettled DP who did not want to stay in his place and wait for Uhuru to support him in his presidential bid.”265

Third, how has DP Ruto worked with, advised, assisted, corrected or complemented President Kenyatta?266

Should a prospective DP still be a running mate in case the PM267 and DPM offices are introduced that the latter two may need to be (nominated,) appointed and approved by the House?

What is the future constitutional, statutory, regulatory, administrative and political role of a Deputy President in the context of Afro-Kenyanist theory and practice?

9.31Post 2017 and BBI Debates on Reforming the Presidency, Premiership... in Kenya and Africa The foregoing positions are under the 2010 Constitution while some were under the 1969 Constitution as amended in 2008 and under the NARA-2008-2013. What executive-legislative should Kenya adopt in the context of BBI and the post 2010 (2017) generally? Fill in the blanks in the table below:

Office Election or Powers and Disappointment or Appointment Functions Dismissal President Prime Minster Deputy President Deputy Prime Minister (DPM) Deputy Prime Minister Cabinet Secretary Elected, nominated? Sitting in the National

265 See Allan mungai (2020) “Cate Waruguru’s road to Damascus moment,” Standard, Nairobi, June 21, 2020, at https://www.standardmedia.co.ke/article/2001375812/cate-waruguru-the-hurricane-from-laikipia (accessed 22/6/2020). 266 Remarkably, President Kenyatta stated in a Zoom meeting on 18/6/2020 that he did not intend to break the two term rule contrary to speculations that constitutional amendment was intended for term extension. See Patrick Vidijah (2020) “Uhuru: I’m not interested in another term or Prime Minister,” Star, Nairobi, June 18, 2020, at https://www.the-star.co.ke/news/2020-06-18-uhuru-im-not-interested-in-another-term-or-being-prime-minister/ (accessed 22/6/2020). In the run up to the 2002 General Elections, President Moi announced on Moi day (October 10) celebrations that he would retire…. See https://www.youtube.com/watch?v=9Uv5FFP-28w (accessed 23/6/2020). 267 Does that question depend on the mode of appointment, powers, and disappointment of the PM? Page 52 of 58

(CS), Cabinet Elected, nominated? Assembly (NA)? What of Principal Minister (CM), Sitting in the National Secretary?268 technocrat? Assembly (NA)? Cabinet Secretary (CS), Cabinet Minister (CM), political?

Source: Ongoing Research at Sihanya Mentoring and Innovative Lawyering on Constitutional Democracy, Regulatory and Admin Law in Kenya and Africa, 2020, Volume 1 & 2….

9.32 Formal and Informal Titles of Deputy President and Vice President in Kenya and Africa269 Deputy President (DP) Vice President (VP) Naibu wa rais270 Makamu wa rais Mtu wa mkono271 Naibu wa rais Hustler,272 mtu wa mkono,273 My fren, Arap References to the 10 VPs: “Jara,” “Bw Singh,274 Arap Mashamba275 Jamaa wa Goldenberg” …. MDVD277…. Kijana….278 Kuku276 “Uncle Moody”; “Stevo,” “Wiper,” Water

268 See Chapters 14 on Administrative Bureaucracy and Regulatory Process and Justice in Kenya and Africa: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS?), and County Administration (CPSB, County Secretary) in Kenya and Africa 269 What is their meaning and substance? What are some of the favourite expressions or quotes for example jipange (plan [strategize] yourself), usipojipanga utapangwa (if you don’t plan [strategize] yourself, they will plan [strategize against] for you), wangwana… 270 These are Swahili translations. In Luo, it is Jalup Jatelo. In Kalenjin, ……in Kikuyu, munene or mtongoria; in Maasai……,in Kisii…….in Meru,….in Mijikenda……. 271 Pius Maundu (2020) “Kalonzo “errand boy” offer angers WIPER leaders,” Daily Nation, March 18, 2020, at https://www.nation.co.ke/news/politics/Kalonzo--errand-boy--offer-angers-Wiper-leaders/1064-4847148- f3eibiz/index.html (accessed 2/6/2020); Emmanuel Wanjala (2018) “Has Kalonzo started Uhuru’s “errand boy” job?” Star, Nairobi, November 13, 2018, at https://www.the-star.co.ke/news/2018-11-13-has-kalonzo-started- uhurus-errand-boy-job/ (accessed 2/6/2020). Errand or spanner boy? Ibrahim Oruko (2020) “Kalonzo Musyoka’s true colours in groomless marriage,” Daily Nation, Nairobi, June 21, 2020, at https://www.nation.co.ke/kenya/news/politics/kalonzo-musyoka-s-true-colours-in-groomless-marriage-733808 (accessed 22/6/2020); Essy K Tallam (2018) “DP Ruto carries Sh10 million in bag,” HiviSasa, at https://hivisasa.com/posts/1054-photo-dp-ruto-carries-sh10-million-in-bag (accessed March 30, 2020); “Mr Musyoka has repeatedly said that he was keen on working with the President. And during his father’s burial last year, he said he wouldn't mind being President Kenyatta’s “mtu wa mkono (errand boy)…”’See Justus Ochieng’ (2019) “Key leaders seek Uhuru's blessings as 2022 election beckons,” Daily Nation, Nairobi, 3/1/2020 at https://www.nation.co.ke/news/politics/leaders-seek-Uhuru-blessings-as-2022-poll-beckons/1064-5405476- 85hdiiz/index.html (accessed March 30, 2020). 272 Self proclaimed leader of the “hustler nation”…. 273 Self proclaimed presidential errand boy…. 274 After he claimed that Weston Hotel was owned by a Singh…. See…. 275 After claims of numerous land claims against DP Ruto…. See…. 276 Self proclaimed (ex) chicken seller…. 277 …. 278 …. Page 53 of 58

melon279

The formal and informal titles or aliases of Presidents, Prime Ministers, Deputy Presidents, and Deputy Prime Ministers whether given or assumed are partly a reflection of constitutional or legal stipulation or public perception, including expected conduct or reforms in those offices.

9.32 Reforming the Deputy President’s (DP’s) Office in Kenya and Africa How will the Ruto deputy presidency pun out? How can the Deputy Presidency and Deputy President serve Kenya equitably, inclusively, with integrity, efficiently and effectively?

The DP’s office as defined and conceptualised above is the second highest executive office in Kenya and Africa after the president’s. Proposed reforms in the context of the 2019 referendum debate should revolve around the question of the Deputy President (DP’s) position as the President’s principal assistant. Is there need for more clarification and specification of the functions?

What is the best model for a Deputy President (DP), Vice President (VP) or Deputy PM in Kenya and Africa? How should the DP’s powers and functions relate to those of a Prime Minister (PM) who should share power with the President? And the Governors? What of the short, medium and long term contributions of the office and individual DPs to constitutional democracy in Kenya and Africa?

...the discourse continues in class, articles, books, online, in the blogosphere, social media, and appropriate fora…

© Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14; 16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 20/12/2018 11/2/2019; 21/3; 25/3; 16/8; 3/12/19; 4/12/19; 26/3/2020; 27/3/; 29/4/; 7/5/; 20/5/; 2/6/; 19/6/2020 email: [email protected]; [email protected] (use both) url: www.innovativelawyering.com

279 Kalonzo Musyoka has on occasions acknowledged the “water melon” name…. Page 54 of 58

Select Bibliography: See also the text and footnotes in Chapter 9 above. Sources relevant to the topic “Amendment of the Constitution from Presidential and Parliamentary to Afro-Kenyanist Sui generis System”

Prof Ben Sihanya, JSD (Stanford) IP and Constitutional Professor, Public Interest Advocate& Mentor University of Nairobi Law School &Sihanya Mentoring

1. Ben Sihanya ( 2020) “Amending the Constitution of Kenya 2010 Post 2017,” in Ben Sihanya (2020) Constitutional Democracy in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya, Chapter 22, (eds) by Prof Yash Ghai.

2. Ben Sihanya (2011) “The Presidency and Public Authority in Kenya’s New Constitutional Order,” Constitution Working Paper series No. 2 Society for International Development (SID) Eastern & Central Africa, Nairobi Printed by The Regal Press Ltd, Nairobi. 3. Anyang’ Nyong’o (2019) Presidential or Parliamentary Democracy in Kenya? Choices to Be Made, Booktalk Africaathttp://www.booktalkafrica.com.

4. Kathleen Sullivan & Noah Feldman (2019) Constitutional Law: University Case Book Series, Foundation Press (19Th ed.).

5. Kathleen Sullivan & Noah Feldman (2016) Constitutional Law: University Case Book Series, Foundation Press (19Th ed.).

6. Benjamin Obi Nwabueze (2003) Constitutional Democracy in Africa Vol. 1: Structures, powers and organising principles of government, Spectrum Books, Nigeria.

7. Ben Nwabueze (2003) Constitutional Democracy in Africa Vol. 2: Constitutionalism, Authoritarianism and Statism, Spectrum Books, Nigeria.

8. John Mutakha Kangu (2015) Constitutional Law of Kenya on Devolution, Strathmore University Press, Nairobi.

9. Vicki C. Jackson & Mark Tushnet (2014) Comparative Constitutional Law, Foundation Press, New York (3rd ed.).

10. Vicki Jackson (2013) Constitutional Engagement in a Transnational Era, OUP, New York (3rd ed.).* Page 55 of 58

11. Ben Nwabueze (1985) Constitutional Democracy in Africa Vol. 3: The Pillars Supporting Constitutional Democracy, Spectrum Books, Nigeria.*

12. Mark S. Kende (2015) Comparative Constitutional Law: South African Cases and Materials in a Global Context, Carolina Academic Press.

13. Sujit Choudhry & Tom Ginsburg (eds.) (2016) Constitution Making, Edward Elga Publishing Limited, 159-174.

14. Michael Chege (2019) “Book Review: A Look at Prof Anyang’ Nyong’o’s latest Essays,” [Presidential of Parliamentary Democracy in Kenya? Choices to be Made, Booktalk Africa] Daily Nation, Nairobi, March 18, 2020, at https://www.nation.co.ke/kenya/life-and-style/weekend/book-review-a-look-at-prof- anyang-nyong-o-s-latest-essays--201410 (accessed 22/6/2020).

15. Michael Chege (2019) “Foreword” in Anyang’ Nyong’o (2019) Presidential of Parliamentary Democracy in Kenya? Choices to be Made, Booktalk Africa, at7-10.

16. Yash Ghai (2020) “Selfish political elite at heart of push to change supreme law,” Standard, Nairobi, June 21, 2020, at https://www.standardmedia.co.ke/article/2001375819/selfish-political-elite-at-heart-of- push-to-change-supreme- law?fbclid=IwAR3ZO4py_6jUUp1Axy43iF_8T89FPoVg5i1ouYy5yBS2lSxYpI287TF RtbM (accessed 23/6/2020).

17. Yash Pal Ghai (2020) “Please Kenyans, reject the false promise of BBI,” Star, Nairobi, June 6, 2020, at https://www.the-star.co.ke/siasa/2020-06-06-ghai-please-kenyans-reject- the-false-promise-of-bbi/ (accessed 23/6/2020).

18. Yash Pal Ghai (2020) “A short history of Constitutions and what politicians do to them,” Elephant, Nairobi, March 30, 2020, at https://www.theelephant.info/features/2020/03/30/a-short-history-of-constitutions-and- what-politicians-do-to-them/ (accessed 23/6/2020).

19. Willy Mutunga (2020) “People power in the 2010 Constitution: A reality or an illusion,” Elephant, March 6, 2020, at https://www.theelephant.info/op-eds/2020/03/06/people- power-in-the-2010-constitution-a-reality-or-an-illusion/ (accessed 23/6/2020).

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20. Makau Mutua (2020) “Take JSC out of Judiciary to free courts from Kanu-era intrusion,” Daily Nation, Nairobi, at https://www.nation.co.ke/kenya/blogs- opinion/opinion/mutua-take-jsc-out-of-judiciary-to-free-courts-from-kanu-era-intrusion- 311318 (accessed 23/6/2020).

21. Yash Ghai and Jill Cottrell Ghai (2007) “Constitution making and democratization in Kenya (2000-2005)” 14:1 Democratization, 1-25.

22. Yash Ghai (2005) “A Journey Around Constitutions :Reflections on Contemporary Constitutions,’’ South African Law Journal, 2005, v. 122 n. 4, p. 804-831, Juta & Company Ltd. Juta Law at https://hub.hku.hk/bitstream/10722/222191/1/content.pdf (accessed 04/12/2019).

23. Geoffrey Mosoku (2019) “Why Raila is rooting for parliamentary system,”Standard, September 26, 2019, athttps://www.standardmedia.co.ke/article/2001343366/raila-why-i- support-parliamentary-system (accessed on 29/11/2019).

24. Kent Eaton (2000) “Parliamentarism versus Presidentialism in the Policy Arena,”32(3), Comparative Politics,355-376. doi:10.2307/422371

25. Yash Ghai (2018) “Amending the Constitution or amending politicians,” The StarNairobi, at 27/1/2018, at https://www.the-star.co.ke/news/2018/01/27/amending- theconstitution-or-amending-politicians_c1703747 (accessed 2/8/2018).

26. Paul Manuel & Anne Camissa (1998) “Checks and Balances? How a ParliamentarySystem Could Change American Politics.’’ Dilemmas in American Politics, Routledge, athttps://www.researchgate.net/publication/327406096_Checks_And_Balances_How_A _Parliamentary_System_Could_Change_American_Politics_Dilemmas_in_American_P olitics (accessed 27/11/2019)

27. Jose Cheibub (2007) “Presidentialism, Parliamentarism, and Democracy,’’ Cambridge University Press, Cambridge, 1-157, Article in Perspective on Politics. 201-202. (accessed 27/11/19).

28. Shreya Gaddipati (2019) “The Parliamentary System versus the Presidential System,’’The Borgen Project, on 07/06/2019 at https://borgenproject.org/parliamentary- system-versus-presidential-system/(accessed on 29/11/2019).

29. Jill Cottrell Ghai and Yash Pal Ghai (2018) “Governance: Understanding theparliamentary system,’’ Katiba Institute, Kenya, athttps://www.katibainstitute.org/governance-understanding- the-parliamentary-system/(accessed on 27/11/2019).

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30. Gulcin Ozkan and Richard McManus (2019) “Parliamentary systems do better economically than presidential ones,’’ The Conversation, UK Parliament,11/02/2019, at https://theconversation.com/parliamentary-systems-do-better-economically-than-presidential- ones-111468 (accessed on 29/11/2019)

31. Jonah Goldberg (2018) “An American Parliamentary System Won’t Fix Our Problems,’’ National Review, Politics and Policy,at 02/11/2018, at https://www.nationalreview.com/2018/11/us-politics-polarized-parliamentary-system-will-not- fix/(accessed on 29/11/2019).

32. Mathew Shugart (2005) “Semi-Presidential Systems: Dual Executive and Mixed Authority Patterns,’’French Politics, Volume 3, Issue 3, Pg323-351, at Doi:10.1057/palgrave.fp.8200087, Palgrave MacMillan Ltd UK. 33. Kevin Tan (2017) “Presidential Systems,’’ Oxford Constitutional Law, Encyclopedia entries, Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL], at http://oxcon.ouplaw.com (accessed on 28/11/2019)

34. International Institute for Democracy and Electoral Assistance (2014) “Non-Executive Presidencies in Parliamentary Democracies.”

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