Nairobi County Assembly Deputy Speaker and Ruai MCA Hon John Kamangu Nyumu
The Constitution of Kenya 2010 in Article 178(2) provides that a sitting of the county assembly shall be presided over by the Speaker of the assembly; or “in the absence of the speaker, another member of the assembly elected by the assembly.”
It is on the basis of this provision that when Beatrice Elachi had been temporarily ousted, Nairobi County elected its then Majority Whip Chege Mwaura to be the Acting Speaker despite having Deputy Speaker in office.
This is why the Parliament attempted to remedy the Situation by passing the County Governments (Amendments) Act No. 11 of 2020 which was assented by the President on 9th July 2020, gazetted on 13th July 2020 and commenced on 27th July 2020.
The new law provides in Section 9A(3): In the absence of the speaker, the deputy speaker shall preside at the sitting of the County Assembly. Further, it provides in section 9A(2) that the Deputy Speaker shall be elected by County Assembly.
The question is: Is this enough to satisfy the clear provisions of the Constitution that in absence, the MCAs shall elected a fellow member to act as speaker? Unfortunately, the amendment is not clear whether Deputy Speaker is to be the acting Speaker.
However, the amendment to the County Governments Act, 2012 removed section 9(4) and (5) which provided for election of a member to act in the absence of the speaker. But does the amendment do enough to satisfy the Constitution provision?
Constitutional Lawyer Robinson Kigen, a partner in the law firm of Wesonga, Mutembei & Kigen Advocates, opines: “Seems the new law contradicts the Constitution which makes no mention of Deputy Speaker.”
Kigen adds: “The MCAs can elect an Acting Speaker under the Constitution while the County Governments (Amendment) Act makes it automatic for Deputy Speaker to take over as the Acting Speaker. My take is: The MCAs shall decide who acts as Speaker.”
There in lies the conundrum: Which way shall the Nairobi MCAs decide or are the MCAs to be considered to have already decided? The Constitution seems to imply the Acting Speaker is to be chosen after the absence of the Speaker occurs, not before.
Section 25 of the new law, Act 11 of 2020, provides that the person who was serving as Deputy Speaker before enactment of the amendment shall “not cease to hold office only on account of the coming into force of this Act.”
This transition clause is meant to cushion existing Deputy Speakers from having to automatic ouster. What is not clear is whether the provision will suffice to satisfy the provision of the Constitution providing for election of Acting Speaker.
It appears Nairobi MCAs have two option: One, they can insist that the provisions of the amendment do not apply in event of vacancy in the office of Speaker and opt to elect an Interim/Acting Speaker in lieu of substantive Speaker.
Two, Nairobi MCAs can use the occasion of resignation of Elachi to vote to remove the Deputy Speaker and install a new Deputy Speaker to act as the Speaker. All it takes is two-thirds majority of the MCAs to show the Deputy Speaker the door.
Given that the current Speaker is a close of Associate of of the embattled Former Speaker Beatrice Elachi, it is unlikely Nairobi MCAs most of whom were fighting against him on the other side of the fence will smile and embrace him.
The Deputy Speaker has a choice to make: He can either agree to preside over a session of the Assembly that votes to elect an Acting Speaker as provided for in the Constitution or insist he is the Acting speaker and watch members raise signatures for his removal in which case he shall be forced to stand down pending the motion.
All indications point to the possibility that Nairobi County Assembly Deputy Speaker Hon John Kamangu Nyumu will likely opt for the path of least resistance: Stay out of the wrath of Nairobi MCAs and let them elected an acting Speaker for the time being.