The strains between the current President and his Deputy have drawn much attention to the role of deputies. And perhaps it is in the light of this that both the front-runner candidates for president have set out plans for the role of their deputies if they are elected in August.

And, of course, their choices of running mates (who would become those deputy presidents) have been intended to attract support from the communities to which those running mates belong. To promise to those running mates (and so to their communities) that if elected they will have really important roles to perform is no doubt part of the same support-gathering process.

It began with Raila Odinga’s saying that, if his presidential ticket is successful, Martha Karua will be not only the Deputy President but also Justice and Constitutional Affairs Cabinet Secretary. And at about the same time William Ruto said he could expand the powers of the Deputy.

The media said the new model Deputy in a Ruto presidency would chair cabinet committees, oversee the implementation of cabinet decisions, and coordinate intergovernmental relationships between the national and county governments.

He would also “coordinate planning and supervision of development projects funded by development partners, coordinate constitutional commissions and independent offices in matters that require the intervention of the national government – including budget and policy for their operating frameworks – and perform ‘real duties’ assigned by the president”.

It is not surprising that people are asking whether these plans are constitutional.

So we should ask first whether the Constitution says anything specific to permit or resist what these aspiring presidents say they want for their deputies. Second – even if there is nothing specific – would any of these ideas create practical problems or somehow be inconsistent with the Constitution design of government? And can we get any help from the law or practice of other countries?

Article 147 is about the functions of the Deputy President. That person is the “principal assistant” of the President, and stands in for the President when necessary. The President may assign to the Deputy any functions “of the president”. And the Deputy must not hold any other “state or public office.”

Will future Kenyan presidents really give their deputies useful and satisfying things to do? Kenyan Presidents are not even good at working with cabinets. President Kenyatta recently called his first full cabinet meetings for over a year – though Cabinet committees had been meeting.

Could Karua or Gachagua – be a “Cabinet Secretary”?

The words of the Constitution do create a problem here. First the Constitution clearly thinks of a Cabinet Secretary as being some person who is not the Deputy President – the Cabinet comprises the President, the Deputy, the Attorney General and the Cabinet Secretaries. And the Constitution, as we have just seen, says that the Deputy must not hold any other state office – and being a Cabinet Secretary is a state office – clearly stated in Article 260.

So the answer to our last question is “No”. The Deputy could not be “Cabinet Secretary for X Y or Z”.

But could the Deputy do the things that CSs do, but not have the title – or the salary? When the Constitution says that the Deputy must not hold any other office, was this to prevent too much power in one pair of hands – or too much money and status? It is not entirely clear.

When the Constitution lists the powers of the President, it says that the President “exercises the executive power of the Republic” with the assistance of the Deputy and the CSs. This rather suggests that the President can do anything – and thus could ask the Deputy to do anything – that is within the executive power (and not law making or judicial).

This could be problematic. Being a Cabinet Secretary is not just a title. CSs acquire legal powers – and responsibilities – when the President sets out in an Executive Order what laws each CS is responsible for. The law may give power to make regulations, to make appointments, to dismiss people, for example. And the Constitution says that Cabinet Secretaries must report regularly to Parliament on their responsibilities.

Looking at the US is not very helpful – although our system owes a lot to theirs. First Cabinet Secretaries are not specifically referred to in the Constitution. And the Deputy has one important job – being the Speaker of the Senate. President Biden has given Vice President Harris some important administrative policy jobs – overseeing some initiative of government or reporting on some situation. But these are not tasks that form part of the legal mandate of a member of the US Cabinet.

Chairing cabinet committees, and performing ‘real duties’ assigned by the president”

Under the Constitution the President chairs the Cabinet. No doubt he or she could chair any cabinet committee – or give this task to the Deputy. Nothing new here. Incidentally, it is mildly amusing to see this in Ruto’s plans – this was a role to be assigned to the Prime Minister under the BBI constitutional amendment Bill. And as for ‘real duties’ – that is up to the President. Ruto’s language is presumably really a complaint directed at his current principal.

It is worth remembering how difficult this job is for US vice presidents. The Los Angeles Times reports one expert as saying that the portfolio [meaning being given a specific assignment] “is often a trap, in part because it can amount to time-sucking ‘make-work’ and ‘you can be held accountable for things, even if you may not be able to control them’.”

But is there not a reluctance to give deputies a chance to exercise power and judgment for fear they overshadow the principal? How much power will these deputies really have? If the reality is not much, the courts will never get to decide what might be quite difficult questions.

“Oversee the implementation of cabinet decisions”

This is presumably something that someone ought to be doing and could appropriately be assigned to the Deputy. There should be a mechanism to ensure that Ministries and agencies of government report back on what has been done to implement cabinet decisions. How deeply the Deputy could go into this is not clear – it would depend on the resources the office was given.

Coordinating planning and supervision of donor development projects may present similar problems. Most projects will be overseen by the relevant ministry. How would the DP be able to do a better job? Certainly, major resources would need to be assigned to that office.

“Coordinate relationships between the national and county governments”

This is likely to be a huge and probably thankless task. Much is already the responsibility of the Treasury, the Senate, the Commission on Revenue Allocation, and a complex mechanism set up under law as required by the Constitution for resolving disputes between governments.

However, there is no doubt room for the presidency in some situations to work on relations with county governments, provided that the roles of other bodies are not encroached on. It would require considerable diplomatic skills. Not every Deputy President will have these.

“Coordinate constitutional commissions and independent offices”

This is worrying. Independent commissions and offices are independent particularly of the executive – like the DP. The Constitution emphasises that they are not subject to anyone’s direction or control. If they want coordination they should organise it themselves not work with the executive.

Overall

The constitutional design is full of assigned functions, and chains of command and responsibility – though not always fully spelt out. It is important that these are respected and it is clear who is answerable to whom.

But what is the likelihood of these plans being carried out? Undoubtedly being a deputy of any sort – indeed having a deputy – is not easy. It is not just a matter of Deputy Presidents. Often it seems that relations between governors and their deputies are not cooperative. And I recall from pre-Constitution days some assistant ministers complaining that this was a non-job and they were marginalised.

Will future Kenyan presidents really give their deputies useful and satisfying things to do? Kenyan Presidents are not even good at working with cabinets. President Kenyatta recently called his first full cabinet meetings for over a year – though Cabinet committees had been meeting.

But is there not a reluctance to give deputies a chance to exercise power and judgment for fear they overshadow the principal? How much power will these deputies really have?

If the reality is not much, the courts will never get to decide what might be quite difficult questions

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2022-06-26-ghai-are-railas-and-rutos-plans-for-their-deputies-constitutional/ on 26 June 2022

Image: ANDREW KASUKU via the Star Newspaper