MOI UNIVERSITY

SCHOOL OF LAW

FLB 400: RESEARCH PAPER

TOPIC OF STUDY: A THREAT TO CONSTITUTIONALISM: A CRITICAL

APPRAISAL OF THE OFFICE OF THE DEPUTY PRESIDENT OF KENYA.

BY
OKINYI WYCLIFFE JAKETCH
LLB/038/10

A dissertation submitted in partial fulfillment of the requirements for the award of

Bachelor of Laws (LL.B) Degree of Moi University.

SUPERVISOR:
MS. LINDA KHAEMBA

APRIL 2014

Declaration
I, OKINYI WYCLIFFE JAKETCH, do hereby, solemnly declare that this dissertation entirely,
save for cited authorities, is my original work and to the best of my knowledge and information
none of this kind or even closer to this has ever been submitted to any institution of higher
learning around the globe for the same or otherwise purpose for which this is intended. I own up
fully for the correctness of facts, law and events as presented in this work.

The research paper has been presented to the undersigned supervisor and duly approved.

Okinyi Wycliffe Jaketch

Ms. Linda Khaemba

(STUDENT)

(SUPERVISOR)

Dedication

In

Memory of

My late father

Mr. Vitalis Jaketch Segu

ii

Acknowledgements
I take this opportunity to thank, in a very special way, the almighty God for allowing me reach
this far with my work. I also thank the government of Kenya for spending heavily on my
university education through programs such as GSSP, HELB and CDF. To some this work might
not look much but for me, it is my sweat, pride, life and fulfillment.
I would also like to appreciate the following persons for whose help this work is now a reality:
My supervisor, Ms. Linda Khaemba, for her constant and helpful guidance throughout the
exercise
My Mum, Mrs. C.A Jaketch, for her efforts towards my schooling that ensured that I had ample
time and peace of mind in my work in particular and my studies in general, I feel indebted.
My brother, Mr. Tom Jaketch, for being in charge of fiscal facilitation, I sincerely appreciate.
My cousin and Rector: Rev.Fr. Francis Lesso, for having allowed me access quality secondary
education, I am highly grateful.
My mentor and friend, Mr. Pius Owour Ongonga, for having given me the opportunity to
develop and know myself, and for being supportive during my university studies, I am sincerely
thankful.
My friend and College mate, Dennis Moroga, for allowing me to use computer whenever I
needed it. Thank you so much.
My family members and relatives who have been supportive, I highly appreciate. I thank all my
friends who have made my school life enjoyable, MUSOL class of 2014, St. Johns Seminary
class of 2008, Kimange class of 2004,youre my experience. All my lecturers, teachers and
library staff in these institutions, thank you. Everyone else including, well-wishers thank you so
much for being happy for me.

iii

Table of Contents
page
Declaration...................................................................................................................................... i
Dedication ...................................................................................................................................... ii
Acknowledgements ...................................................................................................................... iii
Table of Statutes .......................................................................................................................... vii
Table of Cases ............................................................................................................................. viii
Abstract ......................................................................................................................................... ix
Chapter one ................................................................................................................................... 1
1.0 General introduction .............................................................................................................. 1
1.1 Introduction ............................................................................................................................... 1
1.2 Background to the study ......................................................................................................................... 3

1.3 Statement of the research problem ............................................................................................ 7

1.4 Scope of the study ................................................................................................................................... 7
1.5 Research Objectives ................................................................................................................................ 7

1.6 Research Questions ................................................................................................................... 8

1.7 Research Hypotheses ................................................................................................................ 8
1.8 Significance of the Study .......................................................................................................... 9
1.9 Research Methodology ........................................................................................................................... 9

1.10 Chapter Breakdown .............................................................................................................. 13

1.11 Chapter summary. ................................................................................................................. 14
Chapter two ................................................................................................................................. 15
2.0 The Office of the Deputy President as established in the Constitution of Kenya 2010 .. 15
2.1 Introduction. ............................................................................................................................ 15
2.2 Choosing the Deputy President ............................................................................................................. 15

2.2.2 Election of the nominated candidate .................................................................................... 17

2.2.3Term Limit and Security of Tenure ...................................................................................... 20
2.3 Mandate................................................................................................................................... 21
2.3.1 The principal assistant of the president ................................................................................ 21
2.3.2 Acting president ................................................................................................................... 22
2.3.3 President upon assumption of the vacant office of the president ....................................................... 23

2.3.4 Co-president ...................................................................................................................... 23

iv

2.4 Chapter summary .................................................................................................................... 24

Chapter three .............................................................................................................................. 25
3.0 The office of the Deputy President of Kenya as a threat to Constitutionalism ............... 25
3.1 Introduction ............................................................................................................................. 25
3.2 Concept of Constitutionalism: A Diagnosis ........................................................................... 25
3.2.1 Normative Foundation ......................................................................................................... 28
3.2.2 Rule of law ........................................................................................................................... 28
3.2.3 Limited Government ............................................................................................................ 29
3.2.4 Architecture and Design of the Constitution: Separation of powers, Checks, Counterchecks and Balances ..................................................................................................................... 29
3.2.5 Need for and Raison dtre of Constitutionalism ................................................................ 30
3.3 Crux of the existing and imminent threat.............................................................................................. 31

3.3.1 Unilateral Nomination ......................................................................................................... 31

3.3.2Negative Ethnicity and National Disintegration ................................................................... 32
3.3.3 Election as a package and the Freedom of Choice .............................................................. 34
3.3.4 Poor Tool of Governance ..................................................................................................... 35
3.4 Chapter summary .................................................................................................................... 38
Chapter four ................................................................................................................................ 39
4.0 Comparative Study: The Office of the Vice President of USA and India ....................... 39
4.1 Introduction ............................................................................................................................. 39
4.2 United States of America (USA) ............................................................................................ 40
4.2.1 Nomination .......................................................................................................................... 40
4.2.2 National Unity...................................................................................................................... 41
4.2.3 Election ................................................................................................................................ 43
4.2.4 Governance Generally ......................................................................................................... 44
4.3 India ........................................................................................................................................ 46
4.3.1 Nomination .......................................................................................................................... 47
4.3.2 National Unity...................................................................................................................... 47
4.3.3 Election ................................................................................................................................ 48
4.3.4 Governance Generally ......................................................................................................... 49
4.4 Chapter Summary ................................................................................................................... 50
v

Chapter five ................................................................................................................................. 51

5.0 General Conclusion and Recommendations ....................................................................... 51
5.1 Introduction ............................................................................................................................. 51
5.2 Conclusion .............................................................................................................................. 51
5.3 Recommendations ................................................................................................................... 53
5.3.1 Participatory Nomination and Nomination Standards ......................................................... 54
5.3.2 Minority/Majority Ticket or Runners up Formula ............................................................... 55
5.3.3 Severed Election; Popular or Electoral College................................................................... 56
5.3.4 Abolish Election and Re-adopt Appointment procedures ................................................... 57
5.3.5 Delimited and Specific Roles; the President of the Senate and/or Cabinet Secretary ......... 57
5.3.6 Same Party Policy and Reviewed Impeachment Procedures ............................................... 58
5.4 Chapter Summary ................................................................................................................... 59
Bibliography ................................................................................................................................ 60

vi

Table of Statutes
Constitution of Kenya Review Commission Act, 1995
Leadership and Integrity Act, 2011
National Accord and Reconciliation Act, 2008
Political Parities Act, 2011
Retirement Benefits Act, 2003
The Constitution of India, 1950
The Constitution of Kenya (Amendment) Act, No.18 of 1966
The Constitution of Kenya, 1963
The Constitution of Kenya, 2010
The Constitution of United States of America, 1789
Universal Declaration of Human Rights (adopted 10 December 1948) UNTS1948 (UDHR)

vii

Table of Cases
Kenya
Dr.Thuo Mathenge v Nderitu Gachagua & Others [Election Petition no.1&2 of 2013] H.C Nyeri
In the Matter of R v Uhuru Kenyatta, William Ruto & James Gesami [Petition n.552 of 2012
Kibaki v Moi & Another [Election Petition no.1 of 1998] H.C Nairobi
Law Society of Kenya v National Assembly of the Republic of Kenya [Petition no.281 of 2013]
H.C Nairobi
Muteshi v William Ruto [unreported2013] H.C Eldoret
Orengo v Moi & 12 others [Election Petition no.8 of 1993] H.C Nairobi
R v Judicial Inquiry into Golden Berg International Limited ex parte Saitoti (2006) e KLR
Raila Odinga & Africog v Uhuru Kenyatta, William Ruto & Others [Election Petition no.1 of
1998] H.C Nairobi
East Africa
Okunda v Republic [1970] EA453
United States of America (USA)
Marbury v Madison 5U.S (1Cranch) 137(1803)
Reynolds v Sims 377U.S533 [No.230f 1964] S.C
Smith v Allwright 321U.S649 [NO.51 of 1944] S.C
United States v Classic 313 U.S 299[No.618 0f 1941] S.C
International Criminal Court
The Prosecutor v William Ruto and Joshua Arap Sang [ICC No.01/09-01/11]

viii

Abstract
It is a half a century now since Kenya got independence and over the period Kenyans battled
with authoritarian rule the much they could. The good fights have been crystallized into a new
constitution which has since changed, virtually fully, the legal and political landscape. However,
the change has received little scrutiny from the scholars as wells as the general public. The
indication is that they are satisfied with the status of the law as it is. Regrettably, the struggles in
the previous regimes surrounded the lack of constitutionalism under the then constitutional
dispensation which survived because, amid other reasons, the laxity to assess the efficacy of the
legal framework in place.
It is that laxity that has inspired the researcher with a conviction that in as much as the new law
might seem to be good it must be flipped through from side to side so as to ensure that the
desired goal is capable of being met. Accordingly, a study on the office of the deputy president is
important particularly in understanding the position of constitutionalism under the new
constitutional dispensation. In other words, the public being the subject of this law have a duty to
always be up to date with their law and its implications and thereby obligated to keep it on the
progressive course.

ix

Chapter one
1.0 General introduction
1.1 Introduction
This study is intended to be a discovery about the office of the deputy president of Kenya and
how it is a threat to constitutionalism. It is an exercise that will certainly be worthwhile and the
real worth shall be conspicuously evident when the objects shall have been taken full throttle and
articulately achieved.
The topic of the study embody some instructive and indicative terms which have been coined
and settled upon specifically for the study, taking consideration of their both ordinary and legal
meaning. As such the term threat has been defined to mean an indication of an approaching
menace.1The term critical in its ordinary definition means the making of a careful and fair
judgment of good or bad characteristic of something.2 As well, the term appraisal legally is a
statement or opinion judging the worth, value or conditions of something.3
The term deputy president is taken from the description given by the new constitution of Kenya
2010.4The office would therefore mean an institution created in the constitution to
accommodate such personality in the governance of a state. Finally, the term constitutionalism
which captures a crucial limb of this study has been given both traditional and contemporary
understanding. It is one of the objectives of this study to examine its meaning that is why the
issues of its definition will not be delved into at this stage but later. Nevertheless, for purposes of
coherent clarity from this outset, its traditional understanding has been given by John Mutakha
Kangu one of the Kenyas astute scholars. He says thus;
[] Constitutionalism is a concept that has been said to entail the idea of
limitation power. It connotes the idea of limited government. As opposed to all
governance, it implies a system of limited constitutional governance.
Constitutionalism can be said to entail the scientific enterprise of subjecting the
1

Bryan A. Garner(Ed),Blacks Law Dictionary(Thomson Reuters,2009)pg.1618

Longman Dictionary of contemporary English (Harlow: Pearson Education Limited,8th Ed 1978)pg.373
3
Supra.n.1
4
Chapter nine; Where the term president: means the executive official of the state of Kenya who is the head of state,
government and the commander-in-chief of the armed forces while the deputy president is the principal assistant of
such a person.
2

organization of governance, the definition, division and exercise of public,

political and/or state power to legal or constitutional limitations. It embodies a
system of governance that is subject to sufficient and practical checks, counter
checks and balances in contradiction to arbitrary government. It is a government
of laws as opposed to government of man.5
However the term has since engulfed an enlarged meaning due to contemporary societal
demands as will be seen later but this traditional meaning still hold a lot of sway and forms the
bedrock on which any kind of contemporariness is laid.
All these terms coalesced together would mean, in other words, that this study is all about
making a careful and fair judgment on the constitutional institution that is established to
accommodate the state official who is supposed to be the principal assistant to the head of the
government, state and the commander-in-chief and relating how such an institution is posing an
approaching menace to an expected limited government, government by well-meaning laws but
not by arbitrary men.
This is important because constitutionalism is a struggle.6 Thus both leaders and entire body of
citizenry should not even for a minute sit pretty, with complacency as regards constitutional
matters such of the institution of the office of the deputy president because if they do they might
be deceived, as many have always deceived themselves, that every new thing that is in place is
perfect and deserves no scrutiny. This work serves as a caution too to such people to be vigilant
lest they fall pray of the atrocities that are meant for the past. For it is noted eloquently;
But what is government itself but the greatest reflections on human nature? If men
were angels no government would be necessary. If angels were to govern men,
neither external nor internal controls would be necessary. In framing a
government which is to be administered by men over men, the great difficulty lies
in this; you must first enable the government to control the governed, and in the
next place, oblige it to control itself.7

J Mutakha Kangu, The Social Contractarian Conceptualization of the Theory and Institution of Governance
(2007)2 Moi University Law Journal 32-33.
6
H.W.O Okoth-Ogendo, Constitutionalism without constitutionalism: An African political paradox (New York:
American council of Learned Societies, 1993)60-66, as quoted by Olivero and Wheatley, Constitutionalism and
Democracy: Transition in the contemporary world (New York: University of Oxford Press) chapter 4 in cent
.Africa. j .pharm. where the quoted author confirms that all socio-political and legal struggles a state engages in for
bitterness in governance is contributing to constitutionalism.
7
James Madison, Federalist paper Number 51,as quoted by J Mutakha Kangu, Constitutionalism: A Comparative
Analysis of Kenya and South Africa(Moi University Press,2008)1, Moi University Law Journal108-109.The writer
in this Article reacts to the note thus;

Besides, the constitution is the supreme law of the land.8This receives the backing of the famous,
authoritative and binding precedents; one by Chief Justice Marshall in Marbury-v -Madison of
the supreme court of USA and locally, the decision in Okunda- v- Republic at the East African
court as it then was.9Accordingly, the conducts and behavior of both the people inter se and the
leaders are within its auspice. Consequently, if any institution like that of the office of the deputy
president which should fully operate under that constitution exposes some looming threat to a
cardinal constitutional principle of constitutionalism then it must be brought to scrutiny and if
any threat is confirmed at the end of the plenary research then ways forward are to be identified,
for struggle shall continue only on the condition that we achieve better ways of doing our
constitutional and governance stuff along the way.
1.2 Background to the study
On 27th August 2010 Kenya promulgated a new constitution.10The event followed a successful
referendum that passed it on 4th the same month with a margin of 67% to 31%.11 This
constitution establishes the office of the deputy president which was not featuring in the old
constitution.12 However, one can argue that it is a just a question of nomenclature, that is, that the
office has just been renamed or repainted but remains the same as what used to be the office of
the vice president in the old constitution because it has the very import of being the office
playing the second and immediate fiddle to the office of the president as far as executive
alignment of the state and government of Kenya is and has been concerned. Nonetheless, the
office of the deputy president in the new constitution is far much different from that which used

The reality however, is that men are not angels. They are selfish human beings who can only think of the welfare of
others after their own welfare has already been taken care of. As such, they need government to rule and watch over
them. Secondly, angels do not rule men. Men are ruled by these fellow men in representative capacity. As such there
is need for external controls on government to keep it within constitutional bounds. It is the reality of the weakness
of man whenever he finds himself in power that has been the worry for many and which informs them to turning to
constitutionalism
8
Constitution of Kenya 2010,Art. 2
9
5 US (1Cranch) 137(1803) and [1970] EA, Pg. 453 respectively. Where in the former it was held that the
constitution is supreme over the conducts and norms provided for in other statutes and in the latter it was held that
that Kenya constitution was to be interpreted as supreme over the Eastern African treaty.
10
This was done by way of ceremony held at Uhuru Park in Nairobi City Presided by then president Mwai Kibaki
and Co-Principal the then prime minister Raila Odinga. Attendance was approximately 2 million with both local and
foreign dignitaries present. All TV and Radio stations had it as their programme for the day and the researcher here
was one of the patriotic viewers.
11
MagicalKenya,6-August-2010:Statement on Outcome of National Referendum,
http://www.magicalKenya.com/Index.php?options.com-content&task=564&Itemid=290 at 25th November 2013
12
Supra.n.4

to be the vice presidency of Kenya save for minor details of national hierarchy, as it shall
become apparent in due course.
Historically, African communities which form the present day Kenya had some forms of political
organizations under a king, chief or head man, as the case might have been, being the executive
ruler. Much is known, inter alia, bout the Nabongo (king) of the wanga, Omogambi (chief of the
kitutu clan) of the Abagusi, Ruoth (chief) of the Luo, Omukasa (headman) of the Bukusu,
Orkoiyot of the Nandi, Gikuyu (king) of the Agikuyu.13These leaders were known to wield a lot
of power politically as well as spiritually and in most of the communities leadership was
hereditary and a king, chief or headman was a symbol of the whole community and every subject
was aware and concerned of him.
However, very little is known about the assistant or deputy of such rulers except of the scanty
information about the assistant chiefs among the Luo called Barasa (a group of assistants to one
chief) who played important roles like locating places of batter trade with other communities like
the Abagusi.14This can only mean that most of them did not have assistants or deputies but only
authoritative cabinet in form of clan elders.15Arguably, that left the place of assistant or deputy
for the wives (most of these communities were patriarchal).But if they did have deputies then
these deputies were powerless and not important to the extent that they could require very little if
no attention among the people and scholars as well, both in and outside Africa.
Similarly, in colonial era which started after the Berlin conference in 1985(6) 16 placed a system
of white man governance where the colony was headed by a governor on behalf of the British
Queen and about the deputy of this governor, very little is known.17 If there was such an office
then such must just have been involved in offering secretarial services to the governor because it
was executively irrelevant in the British system of that time.18

13

See the www.wikepedia.org/kenya-tribes at 25th October 2013.See also Jomo Kenyatta, Facing Mount
Kenya(London:Vintage,1953) pg. 195-196
14
Ibid
15
ibid
16
Tudor Jackson, The law of Kenya (Nairobi: Kenya literature Bureau, 3rd Ed 1966) pg. 56-57. Present day Kenya
was a British protectorate and later colony in 1920 through separate ordinances.
17
Diana Wylie, Confrontation over Kenya: the Colonial office and its critics 1918-1940 (Cambridge University
Press, 1977) The Journal of African History 427-447.
18
Ibid

Merging the two historical practices above creates a blend which still played off in the Kenyas
post- independence governance. At independence Kenya adopted a parliamentary system of
government placing the prime minister as the head of government with no known deputy.
However, the second powerful person in then ruling party was perceived to be performing the
work of the deputy.19
In 1964 Kenya became a republic and abolished the independence constitution and introducing
presidential system with the president as the head of state, government and commander-in-chief
of the armed forces and the vice president as the principal assistant of the president. This is under
the constitution referred to here as the old constitution, 1963 as amended to 2008 by dint of
section 15.20
This saw different personalities from different ethnic, religious and professional backgrounds
occupying this office. Starting with Jaramogi Oginga Odinga(1964-1965),Joseph Zuzarte
Murumbi(1965-1966),Daniel

Toroitich

Arap

Moi(1967-1978),Stanley

Emilio

Mwai

Kibaki(1978-1988), Josephat Njuguna Karanja(1988-may1988),George Kinuthia Saitoti(19891998;1999-2002),Wycliffe Musalia Mudavadi(November2002-December2002),Michael Kijana

Wamalwa(January2003-Augaust2003),Arthur Moody Awouri(2003-2008) and finally Stephen
Kalonzo Musyoka(2008-2013).21

19

Supra.n.16;The ruling party then was Kenya African National Union(KANU)

(1) There shall be a vice-president of Kenya, who shall be appointed by the president.
(2) The president shall appoint the vice-president from among the ministers who are elected members of the
national assembly: Provided that appoint the vice-president shall be made at any time when the functions of the
office of president are being exercised by any person other than the president.
(3) The vice-president shall be the principal assistant of the president in the discharge of its functions.
(4) The vice-president shall not enter upon the duties of his office unless he has taken and subscribed the oath of
allegiance and such oath for the due execution of office as maybe be prescribed by the parliament.
(5) During his tenure of office, the vice-president shall not hold office of profit other than those of Vice-president,
minister and member of the national assembly.
(6) The office of the vice-president shall become vacant(a) if the president so directs; or
(b) If the holder of the office ceases to be an elected member of the national assembly otherwise than by reason of
the dissolution of parliament; or
(c) Upon the election of a person to the office of president.
21
For the list and more details see www.wikipedia.org/wiki/Kenya-vice presidents at 25th October 2013.
20

It was not a ride in the park for most of them because of the deficiency in the above provisions of
the constitution and the subsequent amendments.22 The law was used by the dictatorial regimes
against them and some of them were used as conduits of scandals.23
It is these serious constitutional ineptitudes that invited struggle for constitutional reforms.
Constitution Review Commission was thus formed headed by Prof. Yash P.Ghai.24But the
commission was incapacitated by politics of that time.25Later Committee of experts was
constituted which produced the Bomas Draft of constitution which was altered immensely giving
another draft called Wako Draft. The former was for parliamentary system with a ceremonial
president and vice-president whilst the latter was for an executive president with a vicepresident.26The latter was presented for referendum in 2005 but defeated resoundingly by a large
majority.
After post-election violence, the constitutional moment for Kenya, National Accord and
reconciliation was entered into whose agenda 4 was political and constitutional reforms. 27 It is
upon this agenda that the government of that time constituted another committee of experts
produced the draft, though altered a bit, was accepted in the 2010 referendum and became the
new constitution which creates a new constitution order and attracting hopes for virtues like
constitutionalism that had been lost. It establishes new systems and institutions one of them
being the office of the deputy president of Kenya. It cannot, however, be assumed that this
constitution is perfect or best ,that is why a study like this is hence furthered to churn its content
to ensure that we dont make the backward journey, a journey that has proven excruciating.

22

An example is The constitution of Kenya (Amendment)Act,No.18 of 1966 which introduced Limuru conference
decision which created Eight vice-presidency of each was to be a representative of a province, these was meant to
frustrate Oginga Odinga.
23
See for example Republic-v- Judicial inquiry into Goldenberg international limited ex parte Saitoti (2006) eKLR
.It involved a scandal which touched the then vice-president George Saitoti, later touched Mudavadi and Kijana
Wamalwa. See also the involvement of Moody Awouri in Anglo-leasing scandal ,
www.wikipedia.org/wiki/moody-Awouri at 25th October 2013
24
Created by Constitution of Kenya Review Commission Act, 1995
25
Constitutionnet,http://www.constitutionnet.org/files/KERE02-183.pdf at 25th November 2013
26
Makau Mutua, Kenyas quest for Democracy: Taming Leviathan (Kampala, 2009) pg.122-210. See also the final
report of the committee of experts on constitutional review.
27
National Accord and Reconciliation Act, 2008

1.3 Statement of the research problem

This research admits that the new constitution establishes institutions of governance as a way of
recapturing the glory of constitutionalism that was lost along the way down the Kenyas history.
A good example of such constitutional institutions created is the office of the deputy president.
This office so established takes a good position to conceal the previous gaps that existed before
which had culminated into lack of constitutionalism to a no less extent.
However, the principle of constitutionalism, like any other principle of law, is progressive
meaning that it changes with increased public opinion and societal demand. Kenya now suffers
from ethnicity, divisive politics and confused multi-party democracy, misuse of state offices,
problems of personal integrity and leadership, stress on the economy, among other problems
which affect constitutionalism directly or indirectly.
It is a concern that the way the office of the deputy president is constituted in the constitution
propagates or is capable of propagating the above problems to some extent. The end result of
such propagation is that they finally become constitutionally sanctified in their wrongness and so
become a harm to constitutionalism. Constitutionalism is interested in the welfare of the body
politic and posterity and thus takes societal demands as priority which includes the need for a
strong government, democracy and unity which cannot be easily achieved from the office of the
deputy president as established.
It warrants an in-depth study, therefore, on how this is a reality and a possibility so that the lines
of weakness are identified as early as now and correctional measures are suggested to evade
serious challenges wafting in the status quo.
1.4 Scope of the study
This study is about the country Kenya but at some point will veer off to other countries for
purposes of comparison and authorities.
1.5 Research Objectives
Include the following;
a) To explore the constitutional provisions establishing the office of the deputy president of
Kenya.
b) To examine the concept of constitutionalism.
7

c) To determine whether the office the deputy president of Kenya is a threat to

constitutionalism.
d) To carry out a comparative study with other countries on how they provide for the
establishment of the office comparable to the office of the deputy president of Kenya
with reference to delivery of constitutionalism.
e) To recommend better formula and/or methods of establishment of the office of the deputy
president to ensure that it does not threaten constitutionalism.
1.6 Research Questions
This research seeks to answer the following questions;
a) How does the constitutions of Kenya 2010 provide for the establishment of the office of
the deputy president?
b) What is constitutionalism?
c) Is the office of the deputy president of Kenya a threat to constitutionalism?
d) How do other countries provide for the establishment of the office comparable to the
office of the deputy president with respect to the principle of constitutionalism?
e) Are there other better formula and/or methods of establishing the office of the deputy
president to ensure that it does not threaten constitutionalism?
1.7 Research Hypotheses
This research shall proceed on the following assumptions;
a) That the constitution of Kenya 2010 provides for the establishment of the office of the
deputy president in elaborate terms.
b) That constitutionalism is a broad concept.
c) That the office of the deputy president is a threat to constitutionalism.
d) That, other countries provide for the establishment of the deputy president in a way that it
does not threaten constitutionalism.
e) That there are better formula and methods of establishing the office of the deputy
president that ensure that it does not threaten constitutionalism.

1.8 Significance of the Study

This study is one that will be useful for different categories of persons and for different purposes.
First, for the constitutional policy makers it will be useful for laying a framework for
constitutional reforms whenever there is an opportune moment to do that. Secondly, this work in
itself is a dissemination of constitutional matter which seeks to educate the public and sensitize
them, especially the readers, helping them to understand some of the microscopic issues
involved. Last but not least, this work also contains some superior comparative constitutional
law which can be used to shape constitutional interpretation, implementation and development
by the national constitutional courts and implementation institutions.
1.9 Research Methodology
This research will be based on a qualitative archival research method. That means that it will
involve an intensive and extensive reliance on secondary sources of data. This is because of time
and financial constraints which are key elements of primary sources of data are not available to
the researcher due to the purpose and the nature of the research. From the secondary sources,
data will be collected and collated for the required idea. Their authoritative references will as
well be provided. The secondary sources of data that will be relied upon include library and
internet sources. Library sources include; Published books, journal articles, newspaper articles,
review books, review articles, case books and law reports.
1.8 Theoretical Framework and Literature Review
a) Theoretical Framework
This study shall be wheeled on the basis of the following theories;28
i.

Social contract theory

Taking John Lockes and J.J Rousseaus approaches that a government is a contract by all people
who give it power based on natural law expectations that its conducts and behavior must be
weighed against its practical reasonableness standard. Law that is not reasonable to comply with
is no law. That law must be morally obligatory and must serve some justifiable end for common
good. It follows then that establishment of the office of the deputy president is a social contract
and must per force be reasonable and capable of meting out common good.
28

M.D.A Freeman, Introduction to jurisprudence (London: Sweet & Maxwell, 8th Ed 1959) pgs.105-150, pg.12201256 respectively.

ii.

Socio-Legal theory

As furthered by C.L.S and Unger that law is a reality of social contingencies. Social order and
social terms of life is intricate determinant of law and legal reasoning. Law must always be
understood with respect to its societal origin and such must resemble. Passion or emotion of
common populace is a relevant factor for legal order since it encourages participatory
governance. The people can always change their society and law by radical democracy since
laws must express societal positive attitude not defining structure because in pluralistic
democracy, people should rule not structures. Through legal analysis what structure should be,
can be imagined properly in a democratic society. People, through law, should have means and
freedom to govern themselves. Therefore, the office of the deputy president being a legal
construct should express the societal demands in Kenya and must form part of the platforms
through which the self-rule and uniform by Kenyans with their common societal aspirations is
exercised or else the people themselves have all the reasons and wherewithal to change it for
better.
b) Literature review
Since the promulgation of the new constitution of Kenya not much literature has appeared
particularly those analysing the office of the deputy president. Nonetheless, some of Kenyan
scholars have had something to say. J.O Ambani and M.K Mbondenyi in their book The New
Constitutional Law of Kenya; Principles, Government and human rights 29 reiterates the
constitutional provisions that establishes the office of the deputy president of Kenya. However,
they failed to link the office with the principle of constitutionalism on whether it is a threat to it
or not.
Dennis Benn Mosota in his article Constitutionalism and the rule of law under the new
constitutional order30 accurately analyses the principle of constitutionalism with respect to
constraint of government and incorporation of contemporary societal demand as a key principle
of democratic governance. The problem with his analysis is that he does not discuss the

29

(Nairobi: Claripress LTD, 2012) pg.94

In P.L.O Lumumba et al, The Constitution of Kenya; Contemporary Reading (Nairobi: Law Africa, 2011)Pg.4748
30

10

relevance of constitutional institutions and structure like the office of the deputy president in
nurturing or destroying constitutionalism.
In resolving that impasse the researcher visited the literatures that existed before the new
constitution was passed such as Constitutional and Administrative law by A W Bradley and K
D Ewing31 where they recognized the doctrine of separation of power and rule of law that is
applied in a structure of executive, legislature and judiciary. This was an important note on how
a constitution should be designed to prevent abuse and misuse of state power. Again they misses
the chance to point out how substructures in these three arms of government like the office of the
deputy president in the executive can play a role in the sum of handling of power.
In the same line Professor B.O Nwabueze in his book Constitutionalism in the Emergent
States32 categorically describes the concept of constitutionalism and how constitution with
constitutionalism should look like. Also he recognizes the doctrine of separation of power and
checks and balances as benchmarks of constitutionalism but again he goes back to the
assumption made by other scholars that these principles only operate within the three arms of
government forgetting about the role played by sub-arms of government.
J Mutakha Kangu in his article The social Contractarian conceptualization of the theory and
institution of governance33 goes farfetched in the theoretical foundation of government noting
the need of law and politic society for purposes of it being utilitarian and egalitarian as opposed
to personal aggrandizement and abuse. He identifies the centrality of constitutionalism in
governance but he does not explain how this is actualized. However, in Constitutionalism: A
Comparative Analysis of Kenya and South Africa34 the same author analyses intensively the
concept of constitutionalism, noting how it is necessary in governance and most importantly he
notes that the architecture and design adopted in constitution determines whether it is with or
without constitutionalism. But again he fails to suggests how a constitution should be structured
and designed especially sub-structuring the governance, for instance, establishing the office of
the deputy president in such a way that gives effect to constitutionalism.

31

(Harlow: Pearson Education Limited, 1931) (15 th Ed).Pg. 78

( London: Hurst & Company,1973)Pgs. 1-21
33
Supra.n.5
34
An article in(2008) 1 Moi University Law Journal 32-33
32

11

Moreover, Tony Honore in his book About law; An introduction35 considers other societal
external factors like morality, self-interest and public opinion as very relevant to the traditional
function of law to limit government though he fails to figure out how such relevance occurs
within structures and substructures of government.
Back in Kenya, J.B Ojwang in his book Constitution Development in Kenya: Institutional
Adaptation Social Change duels too much on hypothetical application of constitutional
principles in a constitutional government. However, he does not explain how the then
constitutional structure in Kenya operated in practice, thus would not have much relevance in
explanation to how the office of the president of Kenya should operate. Interestingly, the same
writer notes in Constitutionalism in classic terms and in African nationhood36 one of his many
articles that the concept of constitutionalism in its application in Africa it must reflect realities in
African governance and notion but just like others he fails to suggest the intuitional framework a
constitution of an African state like Kenya should take to incorporate an African notion of
constitutionalism.
W.H.O Okoth-Ogendo was more eloquent in Constitution without constitutionalism-reflections
in an African Paradox37 when he stated that a country can have a constitution without
constitutionalism because of the architecture and design used for constitution but this article was
written long before the new constitution was passed and so the writer of his stature can only be
reasonably excused for having not anticipated the applicability of his explanation to the new
constitutional order especially to the office of the deputy president.
The researcher will thus labour to bring to the fore most of the points that the literature above
failed to point out. The researcher shall analyze the concept of constitutionalism in its
contemporary Kenyan context. Unlike the above literature, this work will show the linkage
between sub-structures of government particularly the office of the deputy president and the
principle of constitutionalism and how the former is relevant for the survival of the latter.

35

(London: Oxford university press, 1995) pg.23-24

An article in(1990) 6 Lesotho Law Journal; A journal of law and development57-74
37
Supra.n.6
36

12

1.10 Chapter Breakdown

a. Chapter one;
General Introduction:
This is generally an introductory chapter handling introduction, background to the study, scope
of the study, statement of the study, objectives, questions, hypotheses, research methodology,
theoretical framework and literature review, chapter breakdown and summary of the chapter.
b. Chapter two;
The office of the deputy president as established in the constitution of Kenya 2010:
This chapter will explore the constitution provisions on the establishment of the office of the
deputy president. These include mattes of nomination, election, term limit and security of tenure
and Mandate.
c. Chapter three;
The office of the Deputy President of Kenya as a Threat to Constitutionalism:
This chapter will entail a detailed examination of the concept of constitutionalism and properly
argued ways in which the office of the deputy president of Kenya is a threat to constitutionalism.
d. Chapter four;
Comparative study:
Here there will be a study on USA and India in comparison with Kenya on how their
constitutions create the office of the second-in-command, that is, the office of the vice
president viewed parallel with the principle of constitutionalism in each of these countries.

e. Chapter five;
General Conclusion and Recommendation

13

This is the chapter that will contain the general summary of the study and also the recommended
formula and/or methods for reforms depending on the conclusions that shall be arrived at in the
final general summary.
1.11 Chapter summary.
First things first, at this stage the researcher has just laid down the research framework for yet a
thorough and daunting exercise that is to follow. In this chapter, introductory and historical
development behind the topic of study, have also been dealt with leaving the next chapters to
purely hit the nail on the head.

14

Chapter two
2.0 The Office of the Deputy President as established in the Constitution of Kenya 2010
2.1 Introduction.
The office of the deputy president is the second highest public office in Kenya after the office of
the president.38 In the past constitutional dispensation such an office was called the office of the
vice president.39One can ask whether the change in name is just a matter of semantics and form
or it is of substance of constitutional significance.
It is the aim of this chapter to settle this concern by exploring the new constitutional provisions
establishing the office of the deputy president of Kenya and to assess whether such provisions
are elaborate enough to firmly hold it to the expectation of the law even if this regime of law
might not interest many.40 It is to this end that the work will adopt a comparative approach in the
sense of viewing the gains that these provisions have vis--vis the provisions of the old
constitution which shall also necessitate analysis of the surrounding socio-political events that
heralded the office of the deputy president Kenya.
2.2 Choosing the Deputy President
The formula of choosing a candidate for the office of the vice president of Kenya never emerged
as an issue in any discourse that ever existed about the old constitution. Assumedly, that was
because many did not care about this office and that it was too trivial to warrant a concern so the
reforms that occurred happened incidentally.41On the flipside, it is true that for an executive arm
of government to run effectively the offices laterally created under it must be well operational in
terms of the process of occupation and function.42Consequently, a more comprehensive process
is called for to equate the office to its standard. In this regard, Vanderbilt suggests three
criteria:43First is the governance criterion which proposes that the process of choosing a vice
president should aim at establishing a strong and harmonious government by selecting an able
38

The Constitution of Kenya 2010,Art.148

Supra n.21
40
Y.P Ghai, Constitutions and Political Order in East Africa(Cambridge University Press,1972)21The
International Comparative Law Quarterly 403-434
41
Supra n.26
42
Supra n.31
43
V. Michael Nelson, Choosing the Vice President(American Political Science Association,1988)21 Political
Science and politics 858-868
39

15

and competent leader having due consideration to a myriad of factors. Secondly is the legitimacy
criterion which demands that any method used in choosing the officer should be recognized by
the people as a legal one and finally, the election criterion which he said is the most important
for the presidential candidates as it emphasizes on a formula of winning the election by having
proper choice of the vice president.44
These criteria seem to be the standard test for the process of choosing an officer who should be
in the second strata tip of the pyramid qualifying its constitutionality or lack of it. It is on this
light that the constitution of Kenya 2010 is scrutinized with reference to the former regime as
below.
2.2.1 Nomination of a running mate
Under the old regime there was no requirement at all for a presidential candidate to nominate a
person for the office of the vice president.45Consequently, the term running mate was so alien
to the elections that were held then. Arguably, the old constitution failed the preliminary test to
identify a person before election for purposes of legitimacy verification by the people until later
stages where they had non-pivotal role to play. As well, the term running mate is not used
anywhere in the new constitution. However, the term has been used constructively to refer to the
person that a presidential candidate is required to nominate for the office of the deputy president
under the constitution.46
Such a candidate must be qualified for election as president.47This is a very good introduction
since it serves as the threshold for the ability and competence of the candidate and since such as
an officer at some regrettable circumstances is to serve as a fallback president, it is only
reasonable if he is so qualified. Nomination has the impact of recognition and vetting by the
people early before the government is formed and it gives people time to think over the choice of
leadership they want. In any case, the presidential candidate has been given the sole mandate to

44

Ibid
Supra n.21
46
Art.148(1)
47
Ibid; See also Art.137 for the qualification of a presidential candidate:
(1)a person is qualifies for the nomination as a presidential candidate if the person(a) is a citizen of by birth
(b)is qualified to stand for election as a member of parliament;
(c) is nominated by a political party, or is an independent candidate
45

16

nominate his running mate without any conditional determinants.48That allows the presidential
candidate to choose the person he thinks foots the bill based on the criterion of election
above.49Unfortunately, it can be disastrous as the people are given a readymade package without
their input. Nevertheless, it is better than the old dispensation where not even a readymade was
offered.
In addition, this provision for nomination is a useful weapon for achieving the victory for a
presidential candidate as it enlarges his camp and support base if the choice is properly fitting for
the job under the socio-political situational circumstances in the country. Therefore, it is a score
card that the presidential candidate must play skillfully because it means success or failure right
from this stage.50
However, the skills to be employed here have emerged to go over board of the tests above and
sometimes include non-legal considerations. For instance, the choice for a running mate for the
4th March 2013 general election occasioned a scenario whereby presidential candidates, among
other personal and non-personal factors, pegged their choice on the tribal support and numbers
that a person for deputy president had.51Tribalism has been an electoral key factor in Kenya since
independence.52Therefore, with respect to the nomination of the deputy presidential candidate
the new constitution ingrains it even more.
2.2.2 Election of the nominated candidate
Election is the second stage that a candidate for deputy president must undergo as a
constitutional rite of passage under the new regime. The candidate alongside his presidential

48

Ibid
Supra n.43
50
Situation Dispatch,www.situationdispatch.com/2013/01/a-running-mate-win-or-loose-you-html at 9th November
2013.Where a blogger site had the following comments;
[] one of the Kenyas presidential candidates in thecoming national elections, Peter Kenneth, has picked Ronnie
Osumba as his running mate. But who is Mr. Sumba...Kenneths decision is arguably a foolish one. He is not alone
in this though, his counterpart in the race to state house, Prof. Ole kiayapi also picked little known business woman
from Meru to be his running mate. None of them as a realistic chance of being elected Kenyas fourth president
anywaywise presidential candidates even in Kenya, know that a well-known running mate is a plus, oblivious of
their grasp of political issues.
51
Africog, what is Tyranny of Numbers? Inside Mutahi Ngunyis Numerology,www.africog.org/content/whattyranny-numbers-inside-mutahi-ngunyis-numerology at 12th November 2013.
52
Donald Rothchild, Ethnic Inequalities in Kenya(Cambridge University Press,1969)17The journal of Modern
African Studies 689-711
49

17

candidate is presented for election as a package.53This is a sharp break from the past where the
president had the exclusive power to appoint the vice president.54As a result, the power was
abused and misused in awarding loyalty and cronies at the expense of popular demand of good
governance.55
Besides, even if there were to be such an election then it would still be shambolic and at mercy
of the president since he stage managed widely the electoral process formerly.56 Election stage
therefore cures the problem by giving the people opportunity to express their approval or
disapproval of the candidate as the personality and item is openly offered for popular choice in
the ballot. In turn the candidate himself receives popular mandate within the backdrop of the
legal theory of governance.57Really a person cannot purport to hold a powerful constitutional
office which draws its sovereign authority from the people without he himself being consented to
by the very people through an open and lawful forum like election.58
However, a wedged difficulty cannot be avoided here due to the fact that Kenya is a multi- party
state59 with the positivistic framework for the enjoyment of the freedom to form political
parties.60The difficulty really is the opened the floodgates for the presidential candidates and
candidates for deputy president to belong to separate political parties.61Although it has its angelic
side in enabling exercise of freedom and individual political economy, it is awkward for the
candidates who expect a single vote from a voter to belong to different parties on a co-shared
account. Anyway, the worry appears settled by the fact that the candidates are also allowed to
form political coalition as a political vehicle under whose umbrella the duo would be

53

Supra n.29
Supra n.21
55
Supra n.22
56
David Throup, Elections and Political Legitimacy in Kenya(1993)63, Journal of the International African
Institute 371-396.The writer noted;
The domestic economy has experienced a difficult decade in the 1980s when the world has been in recession,
especially as Kenyas population continues to double every seventeen yearsthe decline has been exacerbated by
president Mois attempt to restructure Kenyas political economy, diverting resources and patronage from Kikuyu,
who benefited from Kenyattas largesse, to his own Kalenjin ethnic group in the rift valley and political allies among
the Aballuhya of western province to various groups from coast provinceeven Kenyas vice president is subject to
normal rules of factional politics.
57
Supra n.5
58
Art.1(1)
59
Art.4(2)
60
Political Parties Act, 2011
61
Ibid
54

18

elected.62Political parties are crucial tools that influence the kind of a person to elected as a
deputy president, especially if he has a strong one, and also they form the ambit of the autonomy
of this person.
In another dimension, election of two candidates as one might be risky particularly for the
presidential candidate who needs, more than often in reality, victory on behalf of the two. Again
at this level he must be very careful because a single slightest mistake with his or others
candidate(s) for the deputy presidential election can cost him his election. By analogy, for
instance, the case of Dr.Thuo Mathenge-v-Nderitu Gachagua &others: The petitioner was a
candidate for the Nyeri county gubernatorial seat, the electoral commission confused the name of
his running mate, he notified them but they failed to rectify it and he lost the election. He
petitioned on the ground of election irregularity and Wakiaga, J in his wisdom upheld his
petition.63
Moreover, as a matter of adjectival justice any petition arising from this election must enjoin the
deputy presidential candidate as a party to the suit without which the petition would be
inadequate for failure to follow due process once a package always should be a package even in
the eye of law. In Raila Odinga &Africog-v-Uhuru Kenyatta, William Ruto & others:

64

the

procedure was rather followed setting such a heavy and binding precedent in the land for the
election disputes to come. This procedural practice was never the case under the old constitution
because in the first place the presidential election was not packaged.65Thus these previous
petitions suffered lack of support from a seriously interested party of the stature of a vice
president unlike in the new regime.
Finally, the election of the deputy president will have to be screened thoroughly by the demands
of the laws on leadership and integrity just like it does to any public officer. 66This is strange to
the old dispensation which might have contributed in appointing vice presidents whose integrity

62

Samwel Omwenga, Assessing the political coalitions of the 2013 election season the Star 9th November 2013
Election Petition no.1 & 2(H.C, 2013) Nyeri; However, the decision has been overruled by court of appeal
judgment but after a prolonged court battle.Art.180 (5) & (6) of the Constitution provide for a packaged election of
the Governor and his deputy similar to that of the President and his deputy.
64
Election Petition no.5 [2013]S.C
65
See for example Orengo-v-Moi &12 others Election petition no.8 of 1993.H.C (Nairobi) and Kibaki-v-Moi &
another Election Petition no.1 [1998.]H.C. Nairobi
66
Chapter six of the Constitution & leadership and Integrity Act, 2011
63

19

was questionable.67Nevertheless, this has not been realized in Kenya to this moment drawing
lessons from how the matter of integrity was handled for clearance for the election of 2013, one
cannot say that now that we have a new constitution we have achieved it.68
2.2.3Term Limit and Security of Tenure
The former regime had no term limit unlike now that the deputy presidents term is limited to
two terms of each five years.69This explains why some vice presidents served for as short as two
months while others served well beyond a decade.70Meaning that some of them had very little
time to serve the people on the one hand and on the other hand some overstayed in office till
their service to the people contravened the purpose. The term is so fixed now that no mortal
being can circumvent it with ulterior motives like before.
The term is neither too short nor too long when one talks of quality governance. It is sufficient
for the officer to engage his best gears of public service and if the public become dissatisfied
they can have the chance to reject him or his flag bearer after five years.71If the rejection is not
possible then can persevere for only another five years to have the tyrant out of office
forever!72This is a jig saw fit with the suggestion of James Madison on his approach to
constitutional term limits and he addressed it as follows:
It might be contended perhaps, that instead of occasional appeals to the people,
which are liable to the objections urged against them, which are the proper and
adequate means of preventing and correcting infractions of the constitution. It will
be attended to that in the examination of these expeditions; I confine myself to
their aptitude for enforcing the constitution, by keeping several departments of
power within their due bounds, without particularly considering them as
provisions for altering the constitution itself.73
During his term of office, the deputy president enjoys security of tenure and can only be
removed on well stipulated grounds.74In the contrary, the vice president under the old

67

D Barkan, Kenya after Moi(2004)187Foreign affairs87-100

See In the matter of R-v-Uhuru Kenyatta, William Ruto &James Gesami Petition n.552 of 2012 as consolidated
with petitions no.554of 2012,573/2012,579/2012 H.C(Nairobi) with reference ICC Kenya cases n.1 & 2
69
Art.148 (6) & (8)
70
Supra n.22
71
Art.136(2) (a)
72
Supra n.67
73
James Madison, Federalist paper no.50(1788)
74
Art.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
68

20

constitution could be fired by the president, just like he was hired, at any time on his personal
grounds especially to punish them for the criticism and dissenting voices.75That arbitrariness is
now caged completely and Kenyans are assured of the full time operational office of the deputy
president saves for unavoidable hiccups if any and the deputy president has the environment to
criticize constructively the office of the president without the fear of losing the job.
2.3 Mandate
A constitutional office, undisputedly, should have a properly delimited function which is skewed
to deliver result.76The old constitution however, indicates the most simplistic way of distribution
of mandate among the constitutional offices.77This instrument presented many unanswered
puzzles. For instance to what extent, was the vice president a principal assistant of the president?
What if the principal never needed assistance? Could the deputy president act when the president
was still alive? The repercussion was instant in form of sustaining busybodies in the budget at
the expense of the civilian who were dying of hunger, civil wars and security leakages which
were rampant in most parts of the country.78Most of these questions are answered by the new
constitution as regards the mandate of the deputy president. This ensues below.
2.3.1 The principal assistant of the president
This is the main function of the deputy president of Kenya.79Of course, this has been the
traditional role of those in the capacity of executive second fiddle. However, the wording of the
new constitution is more explanatory and of more legal effect than the former now that being a
principal assistant means to the extent of execution of presidents functions as opposed to
discharge of duties which had the implication that a vice president could even be a principal
assistant in carrying the presidents office briefcase which is, obviously, a duty. On this
(b)on impeachment(i)on the ground of gross violation of provision of the constitution or any other law;
(ii)whether there are serious reasons to believe that the deputy president has committed a crime under national or
international law; or
(iii) For gross misconduct.
(c) The provisions of Art.144 &145 relating to the removal of the president shall apply, with the necessary
modifications to the removal of the deputy president.
75
See for instance Clyde et al, The Kenyan Election of 1963(Cambridge: Cambridge University Press,1964)2The
Modern African Studies1-40
76
Supra n.31
77
Chanam Singh, The Republican Constitution of Kenya :Historical Background and Analysis(Cambridge:
Cambridge University press,1965)14The international and Comparative Law Quarterly 878-949
78
Supra n.67
79
Art.147(1)

21

understanding it is dissimilar from being an active participant in the execution of presidents

functions as well as executive authority which the deputy president now wields.80Furthermore,
the president is now required by law to assign his deputy some work to do. 81This is the only way
that officer can account for the taxpayers money and due to the space he has he is to blame to the
equal measure as with the president for any bad performance of the executive and by extension
the whole government.
By and large, the office is now distinct as the deputy president does not double up any other
office say member of parliament or cabinet secretary, something which was lawful under the old
constitution. The effect of this can be read from the intention of the drafters of the new
constitution to ensure the canon of separation of power between the arms of government and
among the line institutions so established and probably a move to save on budgetary allocations.
2.3.2 Acting president
A vice president could not act as a president under any circumstance when the president was still
alive. The better understanding of this is that none could discharge any function of the president
in acting capacity whenever he was not in the country until he comes back. One can imagine, for
example, what can happen when there is terrorist attack which requires the input of the
commander-in-chief of the armed forces but he is outside the country.
A deputy president can act as president when the latter is absent temporarily, incapacitated or
when the president so decides to make him act as one.82Though it is subject to other
provisions,83it is useful to ensure that the country is at all times having a president capable of
doing the most essential roles for the existence of a state and its people. Again it goes without

80

Art.131(1)(b)
Art.147(2)
82
Ibid
83
Art.134(2) which lists down the things that an acting president cannot do;
(a)Nomination or appointment of judges of superior court
(b)The nomination of or appointment of any other officer whom the constitution or legislation requires the president
to appoint
(c)The nomination or appointment or dismissal of a cabinet secretary and other state or public officers;
(d)The nomination or appointment or dismissal of 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.
81

22

saying that acting president is not equal to the deputy president, the former denotes an increased
mandate and, stature and a commensurate privileges are hence inevitable.
Under the old constitution a vice president could only act when the president died for a
maximum period of ninety days before a by-election could be conducted subject to other
constitution provisions.84As mentioned earlier, for the deputy president to act however does not
have to wait for the president to die lowering the incentive or motivation to plan for the
presidents death so that he can have the opportunity to act.
2.3.3 President upon assumption of the vacant office of the president
Under no circumstance could a vice president assume the office of the president office, which
fell vacant, as one.85 Contrary to that, the deputy president can assume a vacant office the
president as one for the remaining period.86This is a most crucial introduction going back to the
initial stages of choice of a candidate because it is true that this person can be a president at any
time.87 The provision ensures a smooth transition by avoiding undue expense on a presidential
by-election which can be marred with the emotions and vested interests from different quarters.
After all, the officer has the popular mandate from election and as well qualified to be the
president.88
2.3.4 Co-president
Co-presidency is a sort of power arrangement model that has never existed in Kenya. It beacons
another centre of power functioning as an equal to the office of the president. 89 The new
constitution adopts the traditional paradigm of state power arrangement, that is, one most
powerful office of the president assisted by the deputy president literally.

84

Y.G Ghai and McAuslin ,Public Law and political Change in Kenya: A Study of Government from Colonial times
to the president(Nairobi: Oxford University Press,1970)Pg.228-231
85
Ibid
86
Art.146(1) &(2)(a).The office of the president shall fall vacant if the holder office(a)dies;
(b)resigns, in writing, addressed to the speaker of national assembly; or
(c) Otherwise ceases to hold office under Art.144 or145 or under any other provision of this constitution.
87
Ibid
88
Supra n.46
89
Gail Troy, Mr. and Mrs. President? The Rise and fall of the Co-Presidency(2000)37The Social Science Journal
591-6000

23

Be that as it may, the office of the deputy president is now a complex one owing to its nature,
mandate and the surrounding socio-political factors particularly formation of coalition of
political parties. In a case where coalition is based on fifty-fifty power sharing deal and the
executive relationship is too close and mutual then it is beyond notion that the deputy president is
an equal to the president.90 If both of them command a fairly substantial support from various
regions of the country and numbers in the bicameral legislature then without mincing valid
words the correct reference to such a structure is co-presidency even if the constitution is silent
about it.91
It is noteworthy that William Samoe Ruto is the first deputy president of Kenya .Despite
anything; it is the perception of co-presidency that gives him space to stamp his authority.92
2.4 Chapter summary
This has been a chapter exploring the provisions of the constitution 2010 with regards to the
establishment of the office of the deputy president. Attention has been given to the former
constitutional order as well as pertinent socio-political factors. The finding is that the new
constitution has better and more elaborate provision than its predecessor since most of the
loopholes in the old law have been rectified by the new law. There are significant gains to talk
about. In the converse, these gains have the possibility of posing a threat to constitutionalism
which must be looked into in the next chapter lest the spirited efforts on reforms are mere
vanity.93

90

S. Ann Warshaw, The Co-presidency of Bush and Cheney (Stanford: Stanford University Press,2009)pg.70
Harold C.Reylea, the Law: The Executive Office of the Vice President: Constitutional and Legislative
Considerations (2010)40 Presidential Studies Quarterly 327-341.
92
See All NEP Online, Kenyatta, Ruto to Share Government Jobs equally, www.allnep.com/?=256 at 10th
November 2013.
93
Migai Aketch, Abuse of power and Corruption in Kenya: Will the New Constitution Enhance Government
Accountability(Indiana University Press,2011)18, Indiana Journal of Global Studies341-394
91

24

Chapter three
3.0 The office of the Deputy President of Kenya as a threat to Constitutionalism
3.1 Introduction
Here the office of the deputy president of Kenya is analyzed purposely to assess whether or not it
is a threat to constitutionalism. This justifies the rationale of examining the concept of
constitutionalism to begin with, so that it is well understood for the sake of the discourse. This
chapter is central to this research work since it is where the explanations behind the concerns
raised as the research problem is brought to light.
3.2 Concept of Constitutionalism: A Diagnosis
Constitutionalism is a legal concept used in the constitutional law.94It is said to be the system or
a conglomeration of the art and science used as the external and internal control to the
government.95Nonetheless, individuals confuse the definition of constitutionalism to favour
their platform.96Constitutionalism takes cognizance of the need of the government itself as much
as it does to its limitation.97 Traditionally, the concept has been defined with the view of
limitations of power in constitutional governance in contrast to arbitrary exercise of state
power.98
That is the approach taken by Francis M Deng when he said: Constitutionalism is defined as
mechanism for controlling, regulating, and managing the exercise of power in a process by
which people, individuals and groups, pursue material and other values through institutions using
resources with outcomes and effects.99The modern understanding of the concept, however, goes
beyond the functionality of limiting the government. It encumbers the intellectual counterpart

94

See Supra n.28, pg.9 Where Bradley and Ewing try to fathom the definition of constitutional law to no avail. They
begin by appreciating the fact that there is hard and fast definition but they tried thus; constitutional law is part of
national law which govern the systems of public of public administration and relationships between the individuals
and the stateit includes those laws which regulate the structure and functions of the organs of the government and
their relationship to one another and to the citizen.
95
Supra n.34
96
Mark Hawitson, The Kaiser Reich in Question: Constitutional Crisis in Germany before the first World
War(Chicago: Chicago University Press,2001)73, The Journal of Modern History(not paged)
97
Supra n.32
98
Supra n.34
99
Francis M Deng(Ed), Identity, Diversity and Constitutionalism in Africa(Washington DC: United States of
Institute of Peace,2005)pg.2-35

25

and spiritual progeny of themovement in jurisprudence.100This is why Constitutionalism

should not be viewed as elaboration of a document but rather as a living process that is
constantly evolving with the participation of its people to promote their ownership of governing
frameworks and make them reflect the political, economic, social, and cultural of the continent
and its people.101As well, assuring and protecting human rights is a clear indication of
commitments to constitutionalism.102
To this end, it can be argued that constitutionalism imbues with it quality exercise of power for
common good through a constitutional framework. It leans more towards the notorious spirit of
the law rather than the letter. It is realized when the constitutional aspirations of the people,
which in most cases is shaped by natural sense of law, are met rather than their constitutionality
but of course respect for the positive law is of essence.103It presupposes the interplay between
social and institutional practices in which claims to legality and therefore, legitimate authority
and other fundamental norms through which legal and political decisions are made central.104
Arguably again, even the behavior and integrity of the office occupiers is a considerable factor
when measuring the seepage of constitutionalism in the fabric of societal governance.
Constitutionalism is then unwritten constitution that runs against written constitution.105In other
words, it is the cultural value of a people written in their hearts (inherent) to always have a sound
obedience to that code of conduct which is good and reasonable.106It is a desirable end that
should be met and it cannot be divorced from the wider phenomenon of democracy.107
As a legal theory, constitutionalism is universal with respect of its expectations and required
result, albeit, its applicability is relative to particular circumstances of a politically organized

100

Charles Kray, Constitutionalism (2011)www.washingtonpost.com/wp-dyn/content/article/2011/01/06/ap201101/10604379.html. at 5th December 2013

101
Supra n.99
102
Louis Henkins, The Universality of the Concept of Human Rights(Sage Publications,inc,1989)506, Annals of
the American Academy of Political and Social Science10-16
103
See J Mutakha Kangu, we the People as the sovereign in the Theory and Practice of the Governance (Moi
University press, 2007)2Moi University law journal 196-2014.
104
Mathias Kumm et al (Eds), Global Constitutionalism-Human Rights, Democracy and the Rule of Law
(Cambridge University Press, 2013)2 Cambridge Law Journal 70
105
Brenda Aroko , The Challenges of Constitutionalism in Kenya, Kenyaplex, 12th June 2012
106
Joseph Raz, The Authority of Law (New York: Oxford University Press, 2009) pg.233-250.
107
Ssekaana Musa,Public Law in East Africa(Law Africa,2010)pg.40

26

state.108Therefore, in Kenya constitutionalism can only be achieved if it reflects Kenyans

realities, that is, the will of the Kenyan people.109 In connection to this, the social foundation of
this concept is also significant and it is stated thus:
It (constitutionalism) relates more to pragmatic rationalism and contextual
sensitivity on the best way to temper public power in situation in which people
find themselves. The values and principles of constitutionalismhave to be
applied differing social context-local, regional, national and supranational and in
differing forms of governanceconstitutionalism produces values which
transcend historical and social contingencies and which shape political
development and which in turn are shaped by that development.110
Having said that, it is observable that it is never easy to fathom academically or otherwise the
meaning of constitutionalism especially in contemporary Africa where its meaning is not
settled.111Contrarily, its expectation is simpler to understand which appears to be the clarion call.
All the same, whichever the definition adopted the concept of constitutionalism must embody the
understanding of constitutional systems and political ideas about the limitation of the power of
the modern sovereign state.112That occurs when its basic elements are present.113Even though
scholars suggest quite a number of principles and values of governance as elements of
constitutionalism forming its anatomy, it is accepted that these can be categorized into three, that
is, constitutionalism as a normative foundation, as rule of law and as limited government. 114

108

Supra n.33 Where JB Ojwang expounds that African constitutionalism can be different from that of European
because it is supposed to reflect realities in Africa.
109
Ibid
110
Supra n.33
111
Mahmood Mamdani, The Social Basis of Constitutionalism (Cambridge: Cambridge University Press,
1990)28The journal of African Studies359-374.
112
Harvey
Wheeler,
Reply
to
A
Critique:
Constitutionalism:
The
Theory
of
Institutionalization(1979)11Comparative Politics 493-495
113
Ibid. Enlisted are limited government, accountability of government, and balanced government, and regularized,
individual protection, removal of unjustifiable discrimination, responsive government, and democratic government
as the elements of constitutionalism. See also Louis Henkins, A new birth of Constitutionalism: Genetic Influences
and Genetic Defect in J Mutakha Kangu, Constitutionalism: A Comparative Analysis of Kenya and South Africa
(Moi University, 2008)1, Moi University Law Journal 105-127where he lists the elements to be popular sovereignty,
supreme constitution, rule of law and democracy, limited government, separation of powers and protection of
fundamental human rights. See also Kennedy Maranga, A contextual and Comparative Analysis of
Constitutionalism and Political Culture and Elections: Kenya and Zimbabwe(2011)1, Journal of Global Affairs
Public Polic1-14, which lists elements such as good governance, limited government, free and fair election, spirit of
constitutionalism, cultural values, cohesiveness, implementation structures, national unity, shared cultures and rule
of law.
114
Supra n.34

27

3.2.1 Normative Foundation

This refers to the norms adopted by a constitution as framework which serves as yardstick
against which the operation of the government is evaluated. 115The norms are to shape the kind
and quality of power which is to be exercised for the welfare of the people.116All the constraints
that a government is subjected to for the purposes of avoiding arbitrary power should not just be
for the sake of it but for the aimed result based on the perspective of the normative framework
which is the objective of constitutionalism.117In Kenya this is found in the preamble and Art.10
of the constitution, and in national anthem.118All the operations of the government are expected
to conform and to be informed by them in a means to realize constitutionalism.119
3.2.2 Rule of law
Rule of law is part and parcel of constitutionalism. It has the import that all the power given to
the government rests on the understanding that it will be exercised according to the commonly
accepted principles and laid down rules.120Rule of law lays down the manner in which a
government and the people as well should conduct themselves failure of which a set legal
sanction is equally to follow.121 Men and women who conduct government, even tyrants, need
law.122The government must conduct itself according to the totality of the law in a state.123For
rules of whatever kinds are better than anarchy, right from the way the set rules influence the
making of new rules.124That is why it is referred to as the substance and process, that is, the
relationship of the government and its people and the conduct of such relationship

115

Ibid
Ibid
117
Ibid
118
Respect for supreme God, freedom and Justice, ethnic, cultural and religious diversity, peace and unity, respect
for environment, human rights, equality, democracy, social justice and role of law and self-determination;
Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of people,
human dignity, equity, social justice ,inclusiveness, equality, human rights, non-discrimination and protection of the
marginalized, good governance, integrity, transparency and accountability and sustainable development.
119
Nicole Lindstrom, Constitutionalism between Normative frameworks and the Socio-Legal frameworks of
societies (Cambridge: Cambridge University presss,2011)pg.774-794
120
Supra n.34
121
A.V Dicey, Introduction to the study of the law of the constitution (London: MacMillan Publishers, 1914) partII.
122
P.S. Atiyah, Law & Modern Society (New York: Oxford University Press,1983)pg.104-116
123
A K Rogers ,Constitutionalism, International Journal of Ethics,vol.40 no.3(Chicago: The University of Chicago
Press,1930)pg.289-304
124
Supra n.31
116

28

respectively.125Any rule of law should prevail over other empty behaviors when the two are in
contest.126
3.2.3 Limited Government
It is recognized that for the sake of constitutionalism, the constitution must create an effective
and strong government and at the same time must limit the same government to avoid abuse of
political power for it is known that power corrupts and absolute power corrupts absolutely.127
How that limitation is achieved is answered below.
3.2.4 Architecture and Design of the Constitution: Separation of powers, Checks, Counterchecks and Balances
Refers to the institutional arrangement adopted by a constitution with the aim of
constitutionalism delivery. Notably, states which have written constitutions differ at this level
and that is why delivery of constitutionalism varies from state to state. 128A limited government is
achieved by structuring the constitutional institutions in such a way that they give effect to the
doctrines of separation of powers and checks, counter checks and balances. 129 These doctrines
have been mentioned to be essential for the survival of constitutionalism. 130They are useful in
formulating the definition of modern constitutionalism.131 They are also central to the republican
nature of governance which is one of the core normative foundations of constitutionalism.132 Put
in other words, the constitution which is the supreme norm establishes distinct arms of
government, that is, executive, legislature and judiciary, thereby empowers them with separate

125

Ian Loveland, Constitutional Law: A critical Introduction(London:Butterworths,2000)pg.45-74

Francis Neate and Holly Nelson(Eds), The World Rule of Law Movement and Russian Legal Framework, Law
&Social Inquiry,(Moscow:Justitsinform,2007)pg.17-23
127
Supra n.34
128
Noel B Reynolds, Constitutionalism and Rule of Law in J Mutakha Kangu, Constitutionalism: A Comparative
Analysis of Kenya and South Africa, Moi University Law Journal,no.1(Moi University Press,2008)pg.105-127
129
See Law Society of Kenya-v-National Assembly of the Republic of Kenya [petition no.281 of 2013] H.C-Nairobi,
where certificate of urgency sought for by the petitioner was made an issue to conform to issues pertaining
separation of powersrule of law and constitutionalism.
130
Supra n.33
131
Charles Fairman, The Origins of Modern Constitutionalism, The Western Political Quarterly, Vol.2 no.1(Utah:
University of Utah,1949)Pg.168-169
132
J Mutakha Kangu, Understanding The Republican Nature of Governance(Moi University Press,2008)1, Moi
University Law Journal 63-77
126

29

roles and for purposes of exercise of quality power and accountability, provides for interplay
among them as a necessity of governance.133
Deficiency in architecture and design is the reason behind the failure of a constitution to deliver
constitutionalism thus the notion of constitution without constitutionalism.134However, this is not
always true because a good architecture and design does necessarily mean leaders will follow
it.135Thus, rulers themselves must be ready to accept and follow such an architecture and design
for it to work effectively and also to lead responsibly.136
3.2.5 Need for and Raison dtre of Constitutionalism
Human being in nature is selfish and whenever in power would always think of himself first in
excess before the person next to him.137 Unfortunately, the government must be run by such
selfish beings.138Ordinarily, the governed should get a share of the public services and resources
without being prejudiced or being put in a less fortunate position at the receiving end of the
products of arbitrary power and use of state power for personal aggrandizement.139
The truth is that the reverse scenario is possible which necessitates the need for
constitutionalism, whether progressive or conservative, liberal or not.140 It serves to be a
safeguard, security and guardian angel which always walks with state power as established by
the national constitution and all other recognized laws to ensure that it is not used to oppress the
governed in whatever respect whether through their own manipulation or by unwarranted
intervention of those in power.141

133

Supra n.32, pg.19-21

Supra n.37
135
Supra n.35
136
Ibid
137
Supra n.5 and 7
138
Ibid
139
Ibid
140
Robin West, Progressive and Conservative Constitutionalism(Michigan: Michigan Law Review
Association,1990) Michigan Law Review 641-721
141
Supra n.29
134

30

3.3 Crux of the existing and imminent threat

It is important at this level, therefore, to get the relevance of the office of the deputy president of
Kenya with respect to any threat posed to the contextualized constitutionalism expected in
Kenya. This occurs in various ways discussed below.
3.3.1 Unilateral Nomination
The constitution only requires the presidential candidate to nominate the candidate for the deputy
president.142As a matter of fact and law, the public is tactfully avoided at this level, either by
themselves or by proxy. There is lack of public participation in nomination which eventually has
the effect of denying the candidate legitimacy and popular mandate.143 It is legally objectionable
to impose an individual on people to be elected without passing the preliminary test of being
nominated by the very people since this stage is viewed as the sine qua non of internal
democratization.144
It is notable that Kenya has a good electoral practice that all elected positions should first
undergo popular nomination including junior offices via political parties primaries.145Hence a
senior office like that of the deputy president has no excuse, legal or otherwise, to be exempted.
It threatens constitutionalism in the sense that it goes against the basic constitutional normative
foundations such as democracy, participation of people, and the requirement of competence. In
United States v Classic it was held that a primary stage like nomination is an integral part of the
procedure of the popular choice whose interference is fatal because it is the only stage where
interference could have any practical effect in ultimate result. 146Also in Smith v Allwright where
the issue was whether suffrage right to participate in election primaries is a right which is
supposed to be protected by the constitution and it was held that just like right to vote, right to
participate in primaries should be protected by the constitution.147It follows therefore that the

142

Supra n.42
Yash Ghai, Challenges facing Kenya: Decreeing and establishing Constitutional Order (2009),
http://www.africanarguements.org/2009/08/10/decreeing/and-estasblishing-a constitutional-order-challenges-facingKenya/ at 1st January 2014.The writer blames bad constitution which lacked mechanisms for public participation
among other things for post-election violence in Kenya.
144
Liza Baldez, Primaries vs. Quotas: Gender and Candidate Nominations in Mexico, 2003 (Wiley, 2007) Latin
American Politics and Society 69-96.
145
Adams Oloo, The Contemporary opposition in Kenya: Between Internal Traits and State Manipulations in
Edwin Murunga and Shadrack Iasongo (Eds), Kenya: The struggle for Democracy (Dakar, 2007) pg.91.
146
313U.S299[No.618 of 1941]S.C
147
321 U.S649[No.51 of 1944]S.C
143

31

constitutional provision that seek to disenfranchise the common suffrage from exercising their
right primarily is contrary to the desired goal. Besides, owing to the nature of Kenyan Politics
voters might lack alternative for election despite the inadequacies that the candidate who was
unilaterally nominated is having.148
Eventually, the leader who comes to power has not met the threshold of the will of the people.149
In any event, it would be no use of such for a people to wait for the government to be limited by
other avenues for public welfare if already it is rudimentarily irregularly constituted even though
the event is defended strongly by the letter of the constitution, the reason being it does not auger
well with the demands of the countrys rule of law which focuses beyond that letter.150
3.3.2Negative Ethnicity and National Disintegration
Kenya is a multi-ethnic society.151As a result, establishing a harmonious and united government
has been easy.152No much effort has been made towards national unity since the leaders seem not
to bother with the legal and social impacts of that, because for them the overriding objective is to
ascend to power especially riding on the polarized ethnic environment, that is why it has been
noted that ethnicity is a fundamental force in Kenyan politics, a fault line along which elites
mobilize and compete for power.153The same has even been replicated in the legal system; for
instance, a unilateral nomination of running mate discussed above is legal despite the fact that
there are no minimum standards of reference which gives the presidential candidate an incentive
to balance the ticket freely.

148

Sebastian Elischer, Ethnic coalition of Convenience and commitment: Political Parties and Party Systems in
Kenya(2008)
,http://papers.ssrn.com/SO13/papers.cfm?ethnicity-coalitions-convinience-commitment-politicalparties-party
systems in kenya at 25 January 2014
149
Scott L. Althaus, Collective Preferences in Democratic Politics: Opinion Surveys and the Will of the People
(Cambridge: Cambridge University Press, 2003) pg.4.See also Universal Declaration of Human Rights (adopted 10
December 1948) UNTS1948 (UDHR).Para. 3; which recognizes the will of the people as the basis of the authority
of the government without which rebellion against the tyranny is the way to go.
150
Noel Cox, Fiji: The Coup dtat and the Human Rights Commission,
http://www.reocities.com/noelcoxfiles/Fiji-coup.pdf at 25 January 2014
151
Korwa G. Adar, Ethnicity and Ethnic Kings: The Enduring Dual Constraint in Kenyas Multiethnic Democratic
Electoral Experiments(1998)5, Journal of the Third world spectrum 71-96
152
Ibid
153
Ndegwa, Citizenship and Ethnicity: An examination of Two Transitional Moments in Kenyan Politics
(1997)612 in B Elise Whitaker and Jason Giersch, Voting a Constitution: Implication for Democracy in Kenya
(2009)27, Journal of contemporary African Studies 1-20.

32

In the interest of winning election, the strategy of ticket balancing in Kenya is obviously wooing
the tribal Kingpins regardless of their suitability for the office. That is, the key interest is what
the candidate for the deputy president brings on the table.154 Sad to mention, this takes the form
of the tribal numbers that the person command and the larger the tribal number, the higher the
chances to be nominated.155The government would be of two large tribes while the rest remain in
a societal seclusion close to marginalization since in Kenya power is often equated with
presidency and by extension, currently, deputy presidency.156
At worst, the presidential candidate who loses election immediately becomes irrelevant despite
the fact that such candidate attracts popular vote closer to the winner. The manifestations are
hatred, suspicion, envy and mistrust.157In addition, in Kenya like many African countries,
regional divisions coincide with ethnic divisions which when influenced to pull in opposite
directions is equivalent to the particles of national unity disintegrating apart.158 That is contrary
to constitutionalism because it contravenes the legality that Kenyan society is based on the norm
of equality, national unity, social justice, non-discrimination, good governance and protection of
the marginalized.159
The practice of negative ethnicity for personal gain breaks the common cords that are supposed
to hold cohesively the diversity in Kenya and thereby extinguishes the original platform from
and for which constitutionalism exist.160 Moreover, a government which is segmented and
exclusive that way, even if it is limited, the result delivered would only be felt to benefit the
favored ethnic groups, due to that there would exist two views about constitutionalism; that

154

P Anyang Nyongo, State and society in Kenya: The Disintegration of the Nationalist Coalition and the Rise of
Presidential Authoritarianism(Nairobi: Oxford University Press,1989)88, African Affair 229-251.Where the writer
articulates the nature of Kenyan politics thus:
We might therefore argue quite justifiably, that leaders and great political actors are by and large personifications of
the social forces they represent in society. Individuals, no doubt, have ambitions to be this or that in the society
155
Ibid. see also supra n.51
156
Tribe46KenyaBlog, Beyond Tribalism and Prevention of PEV (2013)
http://www.users/desk/kenya-tribalism.mhtl at 20 January 2014
157
Walter Oyugi, Ethnicity in the Electoral Process: The 1992 General Elections in Kenya (1997)2, African
Journal of Politics of Political Science 41-49.
158
Ibid
159
Supra n.122
160
Supra n.30

33

approving its existence and that disapproving it due to political and social injustices.161 This
should not be the case since the existence and purpose of constitutionalism is uniformly felt,162
for example, in evasion of any occurrence of ethnic conflict.163In any case, respect for the
interests and rights of the minority remains an essential element of constitutional democracy
which has a direct link with constitutionalism.164
3.3.3 Election as a package and the Freedom of Choice
The election of the deputy president of Kenya is only technical but not actual because the name
is presented together with that of the presidential candidate for election. Besides, the most
controversial thing about it is that the two candidates, amorphously, attract one vote per voter. It
is humanly possible for a voter to be interested in one as opposed to the other in the package.
Perhaps, the voter only recognizes the presidential candidate as his choice, but the fact that he
must vote all of them together will force him to elect one of them against his fundamental
freedom of choice.165From the courts in Reynolds v Sims the right to choose, that is the right to
vote freely for the candidate of ones choice, was said to fall squarely under the expanded scope
of the right of suffrage in election being the essence of a democratic society and any form of
restraint on that right strikes at the heart of representative government.166
The method of election is a glowing device to confuse the people in their quest to constitute an
appropriate government and it is capable of puzzling them about binding themselves with such a
provision.167 That is a clear evidence of a claw back constitutional provision which allows for
breach of a fundamental freedom entrenched in the same constitution as one of the political
161

Charles M. Fombad, Challenges to Constitutionalism and Constitutional Rights in Africa and the Enabling Role
of Political Parties: Lessons and Perspectives from Southern Africa(2007)55, The American Journal of
Comparative Law1-45
162
S Kabera Karanja, Post-Election violence in Kenya: Sowing Democracy in a Constitutionalism Vacuity,
[email protected] at 25th December 2013.The author correctly notes that a culture of constitutionalism
provides a foundation for ethno-regional inclusion and co-operation in ethnically divided and regionally
marginalized society and that historical injustices as well as engendered politics of ethno-regional exclusion and
negative completion is evidence for lack of constitutionalism.
163
J Oloka-Onyango, Constitutionalism in Africa: Creating opportunities, Facing Challenges(2003)46, African
Studies Review 213-214
164
Morton H. Helprin, Guaranteeing Democracy(Washington post Newsweek International,LLC,1993)91, Foreign
Policy105-122
165
Johan Hatchard et al, Comparative Constitutionalism and Good Governance in the Commonwealth: An Eastern
and Southern African Perspective (Cambridge: Cambridge University Press, 2004), Cambridge Law Journal
388.The writer views constitutionalism in the perspective of free and fair election.
166
377U.S533[No.23 of 1964]S.C
167
Jennifer Nedelsky, The Puzzle and Demands of Modern Constitutionalism(1994)104, Ethics,500-515

34

rights.168It contravenes the cornerstone of democratic governance which is the right to free and
fair elections.169Inconceivably, the people lack option to exercise their will freely and the
immutable danger is illegitimate recognition of a candidate.170 It goes without saying, therefore
that even though it is a conduct directed by law, the law on election of the deputy president of
Kenya is hostile to constitutionalism so long it is an antithesis of justice which has
constitutionalism mandatory component as described by Plato.171
3.3.4 Poor Tool of Governance
Governance depends wholly on constitutionalism for the realization of public or common
good.172However, it is a fragile issue in the hands of the representatives who should manage
public power which in turn sometimes forces constitutionalism out of operation hence poor
governance.173All in all, in the interest of constitutionalism to counter the latter, there should be a
strongly constituted government.174That is, a government where all the distinct arms as well as
the institutions so created under them enjoy separate, adequate and quality power conditioned by
the scale of a supreme law to play checks, counter checks and balances among each other to
ensure that one arm does not dominate the scene of governance or even go past the necessary
limit.175
Meaning, every office of governance should have jurisdictional integrity in order for it to be of
use.176 In addition, the representatives as the custodians of state power should be worthy or
without blemish, that is, possess personal integrity to partake of the activities that the governed

168

Art.38
Supra n.165
170
Supra n.44
171
C Howard McILwain, Constitutionalism: Ancient and Modern (Ithaca: Cornell University Press, 1940) pg.36.The
author quotes Plato (Greek Philosopher) who considers absence or presence of justice at whatever instance to be a
determinant for the existence of constitutionalism. He also quotes Aristotle who appreciates that for good
governance only the best should be elected without undue influence. Aristotle says;
A godlike ruler should rule like god, and if a godlike man should appear among men, godlike rule would and
should be gladly conceded to him.
172
Kenneth Armstrong, Governance and Constitutionalism after Lisbon(2008)46, Journal of Common Market
Studies415-426
173
Supra n.5 and n.7
174
Supra n.32
175
Ibid,p29
176
Chris Skelcher, Jurisdictional Integrity, Polycentrism, and the Design of Democratic Governance (2005)18
Governance: An International Journal of Policy, Administration and Institution89-110
169

35

deem fit.177Finally and most importantly, is that in governance of a state, the head of state and in
most cases head of government should be strengthened and protected by law against any
disharmony and disloyalty from other junior officers with whom he shares the executive
mandate, for purposes of smooth running of the government.178
Unfortunately, the office of the deputy president of Kenya does not have specific roles save for
the traditional mandate of a second-in-command in the government.179Surely, any constitutional
law scholar would attest to the fact that these traditional roles are fairly superfluous and
vague.180To that extent the office can be said to contribute to the effect of less (quality)
power.181At least, other superior jurisdictions which shape the global democracy use the office of
the vice president as a tool to check and balance the power of the legislature by the executive, in
that the vice president is given additional mandate of being the president of the senate.182
Instructively, Kenyan executive is cut off exercising any act of balance on the legislature, which
otherwise would have been possible if the deputy president was mandated with being the
president of the senate, in spite of the immense power that the legislature has been coated with
to check the executive arm.183Neither does the same office serve any important role in the
cabinet nor in legislature. As a consequence, the government can arguably be said to be fairly
unbalanced and weak in the spectrum of constitutionalism.184

177

Jonathan P. Doh and Stephen A. Stumpf, Handbook on Responsible Leadership and Governance in Global
Business (Northampton: Edward Elgar Publishing Ltd, 2005) pg.137-158.
178
Marie D. Natoli, Perspectives on the Vice President(Wiley, 1982)12, Presidential studies quarterly 598-602
179
Art.147
180
Clinton L. Rossitor, The Reform of Vice-presidency (The Academy of Political Science, 1948)63, Political
Science Quarterly, 383-403
181
Ibid
182
George Vanberg, Judicial Review, Legislature and Policy Compromise(1998)10, Journal of Theoretical
Politics 299-326
183
Art.94 (4) read together with chapter nine.
184
Jessica Korn, The Power of Separation: American Constitutionalism and the Myth of the Legislative Veto (New
Sussex: Princeton University Press,1996)pg.12.The whole book counteract Wilson Woodrows critique on the
American institutional structure about legislative veto powers which sought to explain the doctrine of separation of
powers giving legislator superior authority to check the executive, however here the author disagrees and he says
separation of powers-appreciates the power of separationwhich explains how constitutional order allows for
flexibility in the balance of power among three branches at the same time that it presumes the independence
capability of each of them to fulfill its particular tasks

36

Besides, without any prejudice, the office of the president of Kenya is hosting, regrettably, a
leader whose integrity is questionable, establishing a bad precedent for the future occupiers.185 In
as much as the question of leadership and integrity is unsettled in Kenya it would be harmful if
constitutional implementation process play a blind eye to the requirements of the law on
leadership.186
In a case where an office has not achieved the status of attracting the leaders of impeccable
integrity and self-discipline the targeted catch of constitutionalism is at risk in the literal sense,
being that the office has the capacity to insulate leaders from undertaking their rule of law
responsibilities which translates to the imperative conclusion that respecting the entitlements of
commoners cannot easily be achieved under the same office.187On that note, it is identifiable that
leadership should be bound by the ground rules in all its decisions and that their general conduct
should be consistent both with the rule of law188Integrity test is part of the internal limits to
the government which requires other apparatus and procedural mechanisms to enforce for
purposes of governance accountability.189For example, the constitution provides that the deputy
president shall be removed from office through impeachment by legislature on particular grounds
which would amount to general lack of integrity.190
However, the bemoaned issue is that the office of the deputy president of Kenya operationally
seems to be out of reach of such control, bearing in mind that politics and governance in Kenya
are riveted on ethnic-multi party democracy.191Strikingly, that creates a situation whereby the
deputy president would enjoy the ruling majority, alongside the president, in the bicameral
185

Muteshi-v-William Ruto[2013]H.C. Eldoret (unreported)Where the deputy President of Kenya was found guilty of
grabbing 100 acre of land an IDP and yet has not taken it upon himself or asked by any institution in charge to
resign from office and he is not likely to face any impeachment proceedings on that ground; See also n.67 in the
case where the integrity of the current deputy president was petitioned against prior to his election on the ground that
he was indicted(still) at the ICC in the case of The Prosecutor-v-William Ruto and Joshua Sang [ICC No.01/0901/11], though the petition flopped it must be said that the court adopted a very unhealthy handling(avoidance tactic)
of the law which has caused the creeping effects of lack of integrity in government after election.
186
Supra n.67
187
Joseph Kwaka and Hazel Mumbo, Political Leadership and Governance, in D Okoth-Okombo(Ed), Challenging
the Rulers: A Leadership Model for Good Governance (2011) pg.53 the writers contend very well that integrity
of political leadership especially at its apexbeing the central pillar of leadership in a nation is what determine
whether or not a country gets appropriate governance that empowers the people and fulfills their rights.
188
Mary Omosa et al, Theory and Practice of Governance in Kenya(Nairobi: Nairobi University Press,2006)pg.48
189
P G Thomas, The Changing Nature of Accountability in B.Guy Peters and Donald J. Savoie (Eds), Taking
Stock: Assessing Public Sector Reforms (McGill-Queens University Press, 1998) pg.384-385
190
Supra n.78
191
Supra n.154

37

legislature which could be influenced against taking such measures, as the initial stage as matters
of process-initiation demands, on him.192
That leads us to the final concern; it cannot be overstated that the deputy president of Kenya
holds the ruling capacity of the president on a balance to the level that this position can be
mistaken for a co-president.193 That happens on the understanding that the two belong to
different political parties where they are the lead-commanders which work together as a
majority ruling coalition and the problem is that a slight difference between the two could deny
the president the ruling majority and capacity.194 Furthermore, like most of the big political
parties in Kenya, of the ruling political parties which are ethnically constituted, in the
unfortunate event of indifference between their commanders, ethnic animosities against the
president are inevitable which has the serious repercussions on the latters capacity to govern the
country effectively.195
3.4 Chapter summary
Constitutionalism is a legal tenet that aims at the limitation of state power which demands that
the architecture and design used in establishing a constitutional office like the office of the
deputy president should respect rule of law, incorporates normative framework and ascertains the
limited government where leaders of competent capacity are protected by law to govern
effectively to the limited level of required standard of conduct, failure of which it is not
delivered. The office of the deputy president of Kenya is, however, confirmed to be a threat to
constitutionalism in many of the above highlighted ways and in broader sense the office is situate
on a precarious position contrary to its (constitutionalisms) core ingredients and therefore a
reform is necessary. As demonstrated, the nomination is unilateral and discretionary against the
requirement of any democratic process, election process gives no independent choice, it is a
passage to ethno-politics and national disintegration and finally, constitutionally there is very
little to it in terms of role.

192

Melissa Collie, Voting Behavior in Legislature(1984)19, Legislative Studies Quarterly 3-50

Supra n.32
194
Supra n.34
195
Supra n.163
193

38

Chapter four
4.0 Comparative Study: The Office of the Vice President of USA and India
4.1 Introduction
The chapter contains a study on USA and India in a comparative perspective parallel to the
Kenyan case in the previous chapter. The two jurisdictions have been considered for this purpose
after a thorough and meticulous search of the world village which revealed that they are the
world largest democracies.196 Therefore, their stable constitutional governance and of course
achievements or frameworks in place for constitutionalism would serve a better paradigm picture
for a developing democracy like Kenya.197
From this outset it is crucial to note that the two countries have the office of the vice president
which is the comparable equivalent of the office of the deputy president of Kenya.198However,
the government system in India is different from the Kenyan and the USAs presidential
systems.199 Anyhow, that would be inconsequential since the interest of this work lie heavily
with the office second-in-command immediately after the office of the executive president
which is the office of the vice president regardless of the system of the government.
The vice-presidency in these two countries has many similarities with the deputy-presidency in
Kenya.200 However, this chapter will dwell on the distinctions, especially their constitutionality
and other matters incumbent, between the systems which make constitutionalism delivery or
achievement in these two other countries different from Kenya. In other words, this chapter will
answer the question as to why the differences in constitutionalism between Kenya on the one
hand and USA and India on the other hand on the basis of the analysis on the second highest
public office in each. Also, any noted shortcomings with the systems of these jurisdictions shall
be outlined accordingly.

196

R. Nicholas Burns, Americas Strategic Opportunity with India: The New U.S-India Partnership (Council on
Foreign Relations, 2007)86, Foreign Affairs131-146.
197
Bruce Ackerman, The Rise of the World Constitutionalism(1997)83, Virginia Law Review,vol.8377-79
198
The Constitution of United States, Art.II and the Constitution of India, Art.63-69 respectively
199
Susanne H. Rudolph and Lloyd I. Rudolph, New Dimensions in India(2002)13, Journal of Democracy 5266.India is a federal Parliamentary democratic republic that is why it has constitutional office of the prime minister
as the head of the government which Kenya and USA does not have.
200
Such similarities are with respect to executive mandate.

39

4.2 United States of America (USA)

The executive power arrangement in USA puts the office of the vice president to run together
that of the office of the president.201It is the second highest public office.202The vice president is
the first in presidential line of succession and would ascend to presidency upon the death,
resignation or removal of the president.203He is the president of the senate.204Further, the vice
president presides over joint session of congress (bicameral legislature) when it convenes to
count the vote of Electoral College.205The vice president has recently matured into a
distinguished office of considerable and real substantive authority which has grown rapidly and
he is treated, informally, as a valued spokesman of the administration, symbol of the American
concern or support and adviser of the president on broad array of issues.206
4.2.1 Nomination
Vice presidential candidates of the major national political parties are selected by each partys
Quadrennial Nominating Convention after the parties presidential candidates nomination.207
The names of the candidates are placed for nomination by secret ballot in which one who
receives majority votes becomes the partys nominee for vice president.208 The method was until
1956 and since then, Richard Friedman records that, it is almost a matter of presidential
nominees discretion, quickly ratified by a passive conventionhurriedly made without time for
scrutiny.209However, 2008 saw the return of the active political party nomination of vice
presidential candidates.210 In practice though, nominee for president has considerable influence
on the decision and currently it has become custom for that person to select a preferred running
mate, who is then nominated and accepted by the convention.211 Nevertheless, the occasional
201

Constitution of the USA 1789, Art.II

Ibid,Art.II,S.1(1)
203
U.S Constitutional Amendment XXV, S.1
204
Art.II, S.3 (4)
205
U.S, Constitutional Amendment XII,S.1
206
Mark Hiller and Douglas Kriner, Institutional Change and the Dynamics of Vice Presidential
Selection(Wiley,2008)38, Presidential Studies Quarterly 401-421
207
Marie D. Natoli, Vice Presidential Selection: The Political Considerations (Wiley, 1980)10 Presidential Studies
Quarterly163-170.
208
Ibid
209
Richard D. Friedman, Some modest Proposals on the Vice Presidency(The Michigan Law Review,1988)86,
Michigan Law Review1703-1734
210
Jody C. Baumgartner, The Veepstakes: Forecasting vice Presidential Selection in 2008 (2008)41, Political
Science and Politics 765-772.
211
Danny M. Adkson, The Electoral Significance of the Vice Presidency(Wiley,1982)12Presidential Studies
Quarterly 330-336
202

40

attempts to nominate a running mate in advance of convention have been defeated and thus
convention nomination rules still stand.212 It has been viewed that party presidential primary
losers would form the basket for nomination for vice president; however, it is not an automatic
position today in the U.S for the primary runners up but being in the race for presidency gives
one a head start in form of a stepping stone since already they have a constituency of votes.213
The shortcoming of that model is that presidency primaries race spoils the relationship among
them.214
Notably, the US nomination process is not a unilateral preserve of the president. A wide
coverage of popular participation is involved as convention which is also, arguably, be a
representative of the will of larger part of the population and their will is expressed in the ballot
at this initial stage. They get to vet their leader preliminarily. The candidate himself attracts
legitimacy and popular mandate, from the body competent and of aura necessary in the process,
in progression to the extent that when he finally reaches the apex of governance no doubts can be
casted against him.215 The eventual result is that the entire systems of governance are limited for
popular good. That is because from the moment a leader is put through a scrutiny before a
government is formed chances are that the to-be-constituted government would be run by good
leaders whose conduct must therefore be good to the wavelength of constitutionalism as opposed
to arbitrary power.216
4.2.2 National Unity
USA is a federation whose politics are based on ideas and ideological premises.217 That does not
deny the fact that America does have ethnic and other group identity problems but emphasizes
that such identities are near irrelevant as far as national politics is concerned.218 When selecting a

212

Ibid; see also John G. Geer, Rules Governing Presidential Primaries (1986)48, The Journal of Politics, 10061025.
213
George C. Kiser, Presidential Primaries: Stepping-stones to the Vice Presidential Nomination?(Wiley)22
Presidential Studies Quarterly120-213
214
Lee Sigelham and Paul J. Wahlbeck, The Veepstakes: Strategic Choice in Presidential Running mate
Selection(American Political Science Association,1986)48 The American Political Science Review 1006-1025
215
Gideon Rahat, Candidate Selection: The Choice before the Choice (Johns Hopkins University Press, 2007)18,
Journal of Democracy157-170.
216
Ibid
217
Lucius Wilmerding, Jr, The vice Presidency (The Academy of political Science) 68 Political Science Quarterly,
17-41
218
Mary C. Waters, Ethnic Options: Choosing Identities in America(London: University of California Press
Ltd,1990)pg.7-10

41

running mate the presidential candidate do balances two potentially competing goals, that is,
maximizing their chances of being elected and selecting a vice president who is capable of
sharing the burden of the government ,if necessary, succeeding to the presidency. 219In that case
ethnicity has little or no consequence of the likelihood of selection.220After all group equalities
such as racial equality is much an incentive for election than factionalism.221
In this case, for example, nominating a candidate for vice president is traditionally an incentive
used to unite individual political parties as it was awarded the to the disgruntled factions in the
parties.222Currently, the incentive has changed as serious policy considerations are made and in
fact group identity is not featuring anywhere closer to them.223 In as much as there is a vigorous
ticket balancing through the use of that post, the balance is achieved without any ethnic
underpinnings.224
The candidate should help the party bag the election but not hurt it. Basically, the candidate is
supposed to be a true opposite of the presidential candidate.225 That is, they should have different
ideological orientations, age among other things so that each can appeal to different categories in
the whole republic. Consequently, this method of ticket balancing ensures that different factions
are brought together under the same government and the result is national unity. There is
evidence that vice presidential candidates used to be nominated mainly on the basis of the size of
home state and regional balance which could somewhat rock the unity of the nation but more
than much has hitherto changed.226There are no standard of reference in ticket balancing but the
people and political parties themselves have matured enough in this age and time to make real
considerations for good governance such as governing experience, competence and integrity.227
The participatory nomination can be said to be one of the reasons why group identity
considerations are not used discretionarily for selfish ends. In fact, the thesis of Electoral College
219

Supra n.214
Ibid.
221
Michael Tesler and David O. Segrs, Obamas Race: The 2008 Election and the Dream of Post-racial
America(The University of Chicago Press,2010)pg.7-8
222
Marie D. Natoli, Vice Presidential Selection(Wiley,1980)10 Presidential Studies Quarterly 163-170
223
Supra n.214
224
Ibid
225
For example Mondale was considered to be a great choice because he was almost everything that Carter was not,
http://scholar.lib.vt.edu/thesis/available/etd-07072004-103231/unrestricted/Thesis.pdf at 30th January 2014
226
Supra n.218
227
Supra n.214
220

42

is that the second vote of each elector is expected to go to a statesman of a national character not
their son.228Most of the presidential nominees have realized that voters now care more about a
vice presidential candidates competence and loyaltyability to succeed to the presidency ably
and to carry out on the departed presidents policies faithfully than they do about having all
religious faiths and party factions represented on the ticket.229Selection on the merit has made
presidents more willing to entrust authority to their vice presidents.230
4.2.3 Election
Vice president is elected indirectly by Electoral College.231Originally, the vice president of the
U.S was the runners up in the presidential election race which was created to satisfy the concerns
about the presidential selection.232 That meant that the vice president and the president could
come from different political parties.233 Although it is observed that that system at some point
brought ideological differences between the two, it fairly worked well.234 The system made vice
presidency very prestigious as it attracted leading challengers for the presidency.235 Today,
separate ballots are used to vote for the president and the vice president to avoid the event of
having the two come from different parties as political cost that electors incur instead of
discarding their second votes.236
As the law stands, on the converse, the Electors are free to choose the vice president from
another party different from that of the president, albeit, they pledge to vote the two together
from the same party as a team.237 That is different from the Kenyan packaged ticket election and
it is suitable because it is democratic, just like in all democratic system, in the sense that a

228

Albert and Richard, The evolving Vice Presidency78 (Philadelphia: Temple University of the Commonwealth
System of Higher Education, 2005)811Temple Law Review 816-819.
229
Supra n.214
230
Supra n.214
231
John R. Koza et al, Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote
(Los Altos: National Popular Vote Press, 2011) pg.20-50.In the U.S Presidential Electors(Electoral College) is
composed of a group of 583 people nominated by each political party pursuant to U.S Constitution, Art.II(1)(1)&(2).
232
George S. Sirgiovanni, Dumping the Vice President: An Historical Overview and Analysis, Presidential Studies
Quarterly, vol.24 No.4 (1994) pg.765-782.
233
Ibid
234
Jody C. Baumgartner, The American Vice Presidency Reconsidered(WestPort:PragerPublishers,2006)pg.10-14
235
Ibid
236
Supra n.234
237
Ibid

43

collective will is realized by giving to the elected candidates. 238 The voters actually do reason
about the parties, candidates and issues assisted by media emphasis on personal behavior and
issue analysis.239
The former and current systems of election are significant ways of propagating constitutionalism.
To begin with, the method which puts presidential election runners up as the vice president could
help unify the nation after serious divisive campaign. Many national elections are contested
closely by two top candidates and in some countries that are divided along ethno-regional lines
the method can work well to bury the differences by first seeing to it that their representatives
form one government together. Unity creates a people with a collective aspiration and similar
struggle. Constitutionalism obviously thrives well in such an environment.
The current formula of separate election by Electoral College underscores the importance of the
fundamental freedom of choice. It is the benchmark of free and fair election where the electors in
their representative capacity express the will of the people to choose from the options available.
Recognition and popular mandate received in such a process is legitimate because of the
electoral justice involved.
However, the challenges with the U.S Electoral College are that the popular voters are totally
disenfranchised from the process, it does not reflect the direct will of the people and that the
voting style is that every vote is not equal.240
4.2.4 Governance Generally
The vice president of USA enjoys a bigger jurisdictional integrity than the Kenyan deputy
president. The major difference in their mandates being that whilst the former, other than normal
executive roles, serves as the president of the senate where he has the mandate to break the tie
votes because he has a neutral national constituency, the latter can only dream of that.241 But it
must be stressed that apart from tie breaking the standing rules of the U.S senate vest no

238

Andronicks S.Tanguine, Election of VicePresident and adding new members to Representative Bodies
(1997)14 Social Choice and Welfare 23-45.
239
Samuel L. Popkin, Communication and Persuasion in Presidential Campaigns(Chicago University
Press,1991)pg.7
240
Supra n.238
241
Rody C. Baumgartner, Constitutional Design of the Executive: Vice Presidencies in Comparative Perspective
(Routledge, 2009)36 Congress and the Presidency 148-163.

44

significant power in him and does not authorize the vice president to participate in the debate.242
The senate is the national legislative representation of the federal units and being the president
first of all indicates the relevance of the units in a national forum.243
The figure of the vice president gives the federal units the national assurance of their
existence.244 A nation with federal units cannot miss to have federation values as part of the
culture of constitutionalism in that country. In addition, it is through that formula that the
executive arm of the U.S gets to balance the powers of checks and counter checks of the
congress245.Besides, he has the constitutional mandate to preside over the national Electoral
College vote counting process.246 The result is a strong and stable government which is fully
equipped with quality powers and apparatus to limit itself back and forth.247
The weakness of such a mandate is that there is bound to be a dispute on which branch of
government the office falls functionally even if the constitution enlists him in the
executive.248However, the much the president engage the vice president the much he belongs to
the executive which is in many cases the case.249Nevertheless, the constitution is too much
restricted on particularity of the executive roles of the vice president since the office has so few
functions beyond succession one making the office to remain by law insignificant but
strengthened by practice and precedents.250The lesson can be learned from Dick Cheney tenure
which suggested that unless a clearly specified role exists for the vice president there is great
potential for abuse of power.251Whenever an office is by law functionally insignificant it
predisposes the government to the danger of drawing incapable leaders.252

242

Rule XIX.
William H. Riker, The Senate and American Federalism(1955)49, The American Political Science Review 452469
244
Ibid
245
MA. Amparo Casar, Executive-Legislative Relations: The Case of Mexico in Scoff Morganton and Benito
Lacif (Eds), Legislative Politics in Latin America, (Cambridge University Press, 2002) pg.114-116.
246
Supra n.206
247
Cass R. Sunstein, Constitutionalism after the New Deal(Harvard Law Review Association)101Harvard Law
Review 421-510
248
Goldstein K Joel, The New Constitutional Vice Presidency(Wake Forest Law Review Association,Inc,1995)30
Wake Forest Law Review 505
249
Ibid
250
Supra n.249
251
Ibid
252
Ibid
243

45

There has not been a question of personal integrity and leadership in the use long and historically
rich vice presidency. The tribute should be paid to the preliminary processes and vetting that
such a leader goes through before election to the office. Better still, the vice president and
president in many governments would come from the same political party where the president is
the leader.253 The implication is that the process of removal from office by impeachment is not
very hard compared to the scenario where the two had different political parties under a working
agreement and the same has very peripheral possibilities of causing a deadlock in the
government.254
Finally, good working relationship between the president and the vice president is vital but
should not be exploited by the latter to the extent of featuring imperial presidency or copresidency because they are two distinct offices which should respect the doctrine of separation
of powers as well as checks and balances which is prominent among the ways the U.S
Constitution seeks to prevent the concentration of state power and promote good governmental
decision making.255
4.3 India
The vice presidency is the second highest Constitutional office in India after the office of the
president.256The vice president of India similarly has executively insignificant roles.257 He acts as
the president in the absence of the president.258 He is also the ex officio chairperson of Rajya
Sabha (RS or Council of States, upper house of the parliament of India) as well as being the

253

Supra n.236
Horst H.Bahro, Virtues and Vices of Semi-Presidential Government,
http://www.rchis.sinica.edu.tw/publications/ebook/journal/11-01-1999/11-1-1.pdf at 2nd February 2014
255
Joel K. Goldenstein, The Contemporary Presidency: Cheney vice Presidential powers, and the War on
Terror(Wiley,2010)40Presidential Quartely120-139
256
The Constitution of India1950,Art.63
257
Rohini Dasgupta, Essential Powers of the Vice President,
http://www.preservearticles.com/20110426593/essential-powers-of-the-vice-president-India.html at 30th January
2014
258
The Constitution of India, Art.65
254

46

president in waiting.259The office has been depicted as of great honour and prestige attracting
eminent persons of great stature.260
4.3.1 Nomination
A candidate is nominated for vice president by at least twenty electors as proposers and twenty
electors as seconders.261 The nomination papers are scrutinized by the Returning officer and the
names of all eligible candidates are added to the ballot. The electors are the voting members of
Rajya Sabha (upper house) plus that of Lok Sabha (lower house) forming the Electoral
College.262 This method of nomination is simple and expeditious. It saves a lot of time and
money and it avoid the acrimonious exercise of divisive campaigns for popular ballot. It is far
different and separate process from that of the presidential nomination which curbs the problem
of influential pressure from the presidential candidate.263
The process enhances constitutionalism as it is not unilateral decision but a process which
represent the popular participation and expression of their will by the members of the parliament
in their representative capacity by demanding the involvement of at least 40 electors.264 The
nominating number is fairly low enough that allows various contenders to submit their names for
election and that can easily be achieved by different candidates from different political parties
and from the various candidates nominated the best choice can be made.
4.3.2 National Unity
There is sharp diversity in India; linguistic, religious, caste or cultural.265 Due to that, politics is
somehow emotive and therefore for inclusive governance the slot of vice president is used in
appreciation of positive pluralism. But even in that case, essentially, it present serious difficulties
in using the office as an election incentive by the presidential candidate because their elections
are separate.266 The offices are very much distanced especially in the bid to occupy
259

Constitution of India, Art.64; Also See P.M Baksh and Subhash C. Kashyap, The Constitution of India: As
amended by the Tamil Nadu Legislative Council Act,2010(16 of 2010)(Universal Law Publishing Co. PVT
Ltd,2011)pg.11
260
J.N. Lal, The Vice president of India(India Political Science Association, 1967)28 The Journal of Political
Science 104-116
261
Ibid
262
Constitution of India,Art.66
263
Supra n.260
264
Supra n.260
265
Norman D.Palmer, Indias Fourth General Election(1967)7, Asian Survey 275-291
266
The Constitution of India, Part v

47

them.267Consequently, even if other factors would contribute to national disintegration at least

the office of the vice president is not one of them. Of course, his election is influenced by
majority party which is a normal event under constitutional democracy.268Even though such
party politics are influenced by group identities process is taken to the national level where
crme de la crme of the society conduct the affairs of the society on their behalf to avoid the
group animosities that are common with general grass root processes.
But even in that case, majority parties like National Congress are known to be corrupt and
manipulative in politics but the sigh of relief which neutralizes the situation is that economic and
other policy interests are increasingly articulated and they cut across all group
identities.269Despite the religious-cultural conflict in India there have been a robust debates and
conferences to improve the nature of politics and governance in a more united environment.270
Normatively, constitutionalism is strongly entrenched under a dispensation which delivers
national unity in spite of the diversity. A constitutional provision that can ensure nationalism in a
mix of pluralistic structure cannot fail to enable other pillars of constitutionalism.271
Contemporary constitutionalisms struggle goes beyond constitutional recognition of diversity to
the extent of probing the institutional arrangement on how it allows for the interaction and unity
of the diverse groups.272
4.3.3 Election
The nominated candidates are presented to be elected indirectly; by the Electoral College by way
of secret ballot in accordance with the system of proportional representation.273 Nominated
candidates can also participate in election.274 The process progresses as elimination test if in the
267

Ibid
B Chand Agrawal, Cultural Factors in Political Decision-Making: A Small Town Election in India (Economic
and Political Weekly Publisher, 1971)6, Economic and Political Weekly 495-502.
269
Ghanshgam Shah, The 1975 Gujarat Assembly Election in India(University of California Press, 1976)16 Asian
Survey 270-282
270
Jawaharlal Nehru, The Unity of India(1938)16 Foreign Affairs 231-243
271
Fred W. Riggs, Ethnonational Rebellions and Viable Constitutionalism(Sage PublicationsLtd,1995)16,
International Political Science Review 375-404
272
James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University
Press, 1995) pg.26-28.
273
Supra n.262:The system of proportional representations is a concept of a voting system used to elect an assembly
or council, that is, the number of seats won by a party or group of candidates is proportionate to the number of vote
received.
274
PresntMinisterBlogspot,http://www.presentministers.blogspot.in/2013/01/presidents-and-vice-presidents-ofindia.html at 30th January 2014.
268

48

first instance the winner is not ascertained.275The important thing to note is that the election of
the vice president is separate and conducted at different times with that of the president.276 The
electors enjoy freedom of choice on a particular candidate in such a democratic process.277 He
receives, indirectly, the popular mandate and legitimate recognition.278 Just like nomination, the
process is expeditious and saves on election resources, money included. That kind of
constitutional provision incapacitates influential individuals who are bent to manipulate people
and processes of governance to serve their vested interests and thereby promotes
constitutionalism as both substantive and procedural value.279
4.3.4 Governance Generally
Other than the insignificant tradition roles of being principal assistant of the president, acting in
the absence of the president, the vice president of India is the chairperson of the upper house of
the parliament.280 Just like in the U.S, he is the national figure head of the federal units (states)
making federation a national concern instead of viewing it as a political contestant of the central
government. Moreover, as mentioned earlier, the national executive branch gets to check and
balance the powers of the legislature in the same way the latter does to them. The benefit from
that an arrangement is the ability of the government to constitutionally be very strong. However,
the critics, on a shortsighted view though, say that it breaches the doctrine of separation of
powers.281Nevertheless, the major challenge is that he has so little to do in the cabinet or
legislature.
There is no issue that meets the eye about personal integrity and leadership of this office.
Therefore, it can be concluded that it is one of the offices in India that ensures accountability and
self-discipline for responsible governance. One could ask at this point whether there are
mechanisms to ensure that an officer who lacks in integrity is removed from office. The answer
would that the vice president of India is not impeached from office like the president but can be

275

Ibid
Supra n.265
277
Supra n.265
278
A Simon Laden, Democratic Legitimacy and the 2000 Election(Springer, 2002)21, Law and Philosophy 197220
279
David Sciulli, Foundations of Societal Constitutionalism: Principles from the Concepts of Communicative
Action and Procedural Legality(1988)39 The British Journal of Sociology 377-408
280
Supra n.260
281
Supra n.260
276

49

removed by a simple procedure by way of solution of the upper house passed by majority and
agreed to by a simple majority.282
Since he works with the upper house and belongs to the same party with the president it is easier
to obtain effective majority required for his removal especially if the ruling majority party is
under pressure from the people, for purposes of accountability, to do so. 283Finally, the fact that
the nature of politics of India in most cases have it that the president and the vice president
comes from the same party is a vital tool of governance since the president would be in the
undisputed front in enjoying the majority in the two houses of parliament to the extent that even
if the two are unavoidably estranged ,the government cannot stall since because he cannot create
a considerable dissent since all the legislative members of that party are loyal to the president
before a vice president.284
4.4 Chapter Summary
On the foregoing, the brief inference that can be drawn is that the office of the vice president of
USA and India are comparable to Kenyan office of the office of the deputy president especially
with the issue that the offices are of little significance in the running of the executive branch of
the government. Conversely, it is observable that if constitutionalism could be put under
measurement the result would reveal a higher level in USA and India than in Kenya, one reason
being the way the office of the vice president is legally structured and provided for under their
national constitutions, taking their societal nature of politics as of great relevance in the study. In
other words, matters of election, nomination, national unity and governance under the office
could, arguably, give way for the delivery of constitutionalism better than it does in Kenya. That
notwithstanding, in these two selected jurisdictions it is also noted with a lot of concern that they
have weakness or shortcomings which could in themselves be a threat to constitutional delivery
to some extent. But for purposes of improvement, their virtuous gains that overwhelm such
vicious matters could be used to inform the necessary reforms in Kenya.

282

Supra n.265
Ibid
284
V.N Srivastava, The President of India impeachment (1980)41, The Indian Journal of Political Science 803-814
283

50

Chapter five
5.0 General Conclusion and Recommendations
5.1 Introduction
Given the above rendition, it is chiefly demanding at this stage for a concise and self-contained
overall summary of the whole exercise to be given. Much has been said and therefore it is
important to reconcile the analyses in a short and programmatic chronology with reference to the
research problem. Accordingly, based on the findings arrived at, the chapter shall also embody
considered alternative formula and/or methods for establishing the office of the deputy president
for Kenya.
5.2 Conclusion
The study has been bi-tiered, that is, about the office of the deputy president of Kenya
established in the constitution 2010 on the first instance, and particularly on whether or not it is a
threat to constitutionalism on the next instance. In line with that, the following brief findings
have been reached.
First, the history behind the formation of that office reveals a strong practice, and at some point
legal force, that such an office is not important and is used by the president to further his political
gain. Second, the constitution of Kenya 2010 establishes, in elaborate manner, the office
president moving away from what used to be the office of the vice president which had a lot of
defects especially with reference to its contributions towards the delivery of constitutionalism.
Third, the concept of constitutionalism is a principle of constitutional law, theory and practice
which aims at limitation of power of the government for the main and only purpose of ensuring
public good and the principle can be contextualized to reflect the contingencies of a particular
environment of which if it cannot then the principle becomes elusive in such a locality.
Fourth, the office of the deputy president of Kenya despite the gains that it has made, it stands a
threat to the principle of constitutionalism. Fifth, other jurisdictions, USA and India in particular,
in their national constitutions provide for the establishment of the office the vice president
incorporating formula and methods which in a greater extent fall within the backdrop of the
requirements for constitutionalism but in them is some staggering tether. Finally, having found
that the office under scrutiny is not worthier than though as expected, it is a further finding that
51

there is room for reform and ways on how to do it skillfully for if other countries have done it so
Kenya can do it even better.
Up until now, being an assistant in political top leadership has not been something of any
significance in Kenya and that is why there is very little literature on the second highest public
office. The pre-colonial history is even crueler in that top leadership of politically organized
communities in certain instances did not allow for any position of assistant to a king, chief or
headman. During colonial period it was fairly irrelevant regarding the centrality of the system of
government in Britain which had no use for such an office.
Under the old constitutional dispensation the second highest constitutional office in the land
which was the office of the vice president was equally an insignificant office. The president
could appoint anyone for any reason to that office and fire him when he becomes of no use to
him at any time. The process was not democratic and the office was used for unpopular reasons
and most of the vice presidents suffered in the hands of tyrants. The office became of low
prestige and those who were appointed were viewed as sycophants and tools of dictatorial
regimes and so they were equally unpopular. In different perspectives this office locked horns
with the delivery of constitutionalism.
With the promulgation of a new constitution in 2010, many things changed. The newly created
second highest constitutional of office, that is, the office of the deputy president has seen many
pay attention to such an office. It can be said to have increased in significance and prestige
because the office is popularly elective and vibrant participation in the governance of the
country. It has a wider mandate including acting as a president and succeeding him when he dies.
However, all is not well; the same office is a big threat to the delivery of constitutionalism in the
country. The procedures and mandates that relate with it are holistically antithetical to that
principle. In the first place, the nomination process is not participatory and an exclusive preserve
of the president. Two, the election process is packaged and not separated with that of the election
of the president interfering with the freedom of choice and the requirements of free and fair
election, legitimacy and the popular mandate or rather the will of the people. Three, is that the
processes of nomination and election give large and dangerous room for political-ethnic
polarization by being used as an incentive by a presidential candidate to win election. Since most
52

of ethnic groups are statistically small in number, none from such communities can be
considered for deputy present hence marginalization and contravention of the right of minorities
and most significantly breaches the constitutionalisms normative value of national unity.
Finally, problems of general governance are posed which include lack of proper mandate,
questions of personal integrity and the quagmire of the freedom to form and belong to a political
party and over-stringent and counterproductive impeachment procedures.
A study on the office of the vice president of USA and India revealed that there are better ways
of establishing the second highest constitutional office in a country which ensures
constitutionalism. However, such methods also have their fault lines and due care must be
exercised in adopting them in a different society like Kenya because they might not be very
effective. But all the same, they provide a better platform on which any formula to be adopted is
shaped appropriately to fit its environment. What is important is that there is a problem with the
office of the deputy president of Kenya which calls for a reform to ensure that constitutionalism
is not threatened anymore.
It must be admitted as a fair disclaimer, however, that it is not only the office of the deputy
president in Kenya that threaten constitutionalism in Kenya but also other several interlocking
factors play role. Therefore it should not be overly expected that reforms in this office would
completely deliver constitutionalism. Notwithstanding, the good thing is that constitutionalism
can be progressively achieved as they say little by little fills the measure so reforms in the office
shall enable a good stride towards its complete delivery.
5.3 Recommendations
The major concern was how and why the office of the deputy president of Kenya is established
in the constitution of Kenya 2010.The study has established that the processes of occupation and
mandate does come to terms with constitutionalism and therefore it is compelling, with creativity
and scholarship ability, to suggest better if not best alternatives which would have due regard to
constitutionalism since constitutional dispensation which cannot deliver constitutionalism is as
useless as a government which cannot deliver public or common good. The alternative formula
and/or methods that can save the situation follow next.

53

5.3.1 Participatory Nomination and Nomination Standards

Popular participation is an essential component of any democratic process. Nomination of the
candidate for the deputy president should not be unilaterally done by the presidential candidate
because he can use that as instrument of personal gain which can be contrary to
constitutionalism. Especially, when the nomination is participatory the rate of ethnic-number
balancing would be considerably reduced. When people are brought on board the space for
scrutiny is enhance. As a result matters of experience, competence and integrity can be dealt with
at this initial stage. Besides, it helps the leader get recognition and popular mandate as early as it
is necessary for democracy.
In Kenya this can be done through total popular nomination or quota principle which is applied
for the presidential candidates to get particular signatures per county. Or it can be done through
party primaries in that any party interested in fronting a deputy presidential candidate should be
allowed and required by law some time before election to nominate their preferred candidate. If
it is compulsory that a presidential candidate must have a running mate then the party
nominating a presidential candidate should also, separately, nominate the deputy presidential
candidate just like in the USA.
However, participatory nomination can easily be achieved by parliament on behalf of the public
whereby the particular, fairly small, number is required by law to propose and others to second
the name of a deputy presidential candidate within a short time just like in India. The method is
quick and cheap and since it is done by the parliament the different ethnic groups are not put to
the political contests which are always common with a totally popular process in Kenya.
However, the methods cannot help independent candidates especially when a party is required to
nominate candidates. In that event, a private candidate should face a participatory nomination
outside any party in the similar way independent presidential candidates do and if parliament is
to be used then belonging to a particular party should not be compulsory requirement.
Again, whenever presidential candidates influence on the selection a particular candidate is
allowed the process should be guided by preset specific standards of reference. These should
touch on experience, competence and integrity of the candidate and also the issue of ticket
balancing, the standards should be able to prevent ethnic-number electoral-calculations, for

54

example, by prohibiting tickets that spurs ethnic animosities or creates sense of marginalization
and neglect of the rights of minority groups.
5.3.2 Minority/Majority Ticket or Runners up Formula
In a bid to curb the infringement of the civil and political rights of the marginalized and minority
groups and to nurture national unity these options are handy. For the first option, since the ethnic
groups of Kenya are codified and their statistical numbers are always up to date, a legal deal can
be struck in that a thick line should be drawn to divide the code into two, the first segment should
contain majority tribes in terms of numbers and the second segment to contain the minority
tribes. Now, having done that, the law should go straight ahead to demand any presidential
candidate in the majority segment to have selected for him a running mate from the minority
segment. Similarly, for the presidential candidate in the minority segment he should have
selected for him a running mate from the majority segment. A part from enhancing national unity
it would also help obtain competent presidents elected on their merits not riding on his ethnic
numbers assisted by equally large ethnic numbers of the candidate for the deputy president.
With the second option, it is more practicable and useful for the nature of politics in Kenya.
Borrowed from the abolished presidential election system in the USA, this is how it works; all
the nominated presidential candidate are presented on the ballot to be elected for presidency and
whoever becomes the winner becomes the president and his runners up becomes the deputy
president. It can be invaluable for Kenya in the sense that in many elections the top two
candidates command more or else majority of voters and their differences in election is in most
times too slim. That is the true Kenyan election if the true result is not tempered with.
One paramount issue people avoid addressing in Kenya, but of course they know that it is the
reality on the ground, is that such top two candidates always draw their support from distinct
ethnic groups congruent to different regions of the country and the effect is felt before and after
election. Before elections, presidential campaigns are ethnic and regionalized and after election
the faction that does not form the government feel betrayed, rejected and neglected by the faction
that form the government and the wholesome product is negative ethnicity and national
disintegration. Therefore, to avoid that the runners up in the presidential election should be
declared elected deputy president so as to bring together different factions, ethnic groups and
regions which they represents under the same government. It is not a difficult thing to do. One
55

can argue that it can bring a deadlock in governance due to ideological differences between the
two. That fear is auxiliary and cannot in any way outweigh the need for national unity because
Kenyans seem to be very keen on who and from which tribe form the government which means
having the two merely form government would do Kenya much good than have them do
anything substantial. The situation of ethnicity in Kenya is deplorable and excruciating. The
immediate and long term solution is this formula. Aside from incubating and hutching national
unity the formula would make the office of the deputy president more prestigious and significant
than it is now in the sense that high personalities who are highly experienced, competent, and
politically influential would occupy it and this formula would solve the problems of elections
which are a do-or-die presidency-centric.
5.3.3 Severed Election; Popular or Electoral College
To ensure free and fair elections which give priority to freedom of choice the election of the
president and deputy president should be separated, that is, the elections can happen at the same
or different times but the candidates for these two separate posts should be able to be voted in
individually not as a package. That election can involve all the eligible voters in a popular
balloting. However, that option is expensive, tiresome and divisive. Currently, Kenya has six
constitutional offices that are popularly elective and their election is being done at the same time,
adding the seventh one is like putting a noose on the neck of the voters and all tax payers even
though it stands the test of clarity and direct will of the people.
The better alternative to popular separate election is the method of separate Electoral College
election where electors are constituted either in USA or Indian way. Indian method seems to be
sound and affordable for the Kenyan situation for it involves only the voting members of the
upper and lower houses of parliament. Arguably, this formula disenfranchises the public from
exercising their electoral rights. In the contrary view, it will do well than having those rights
exercised by saving the national expenditure, avoiding ethnic animosities common with popular
elections and quick transitional moments. It has reached a point in time that a voter is not voting
at his convenience but his safety such that a voter must travel to places of birth where they are
safe from the wrath of other opposing ethnic groups and at that level enjoying rights to vote is
counterproductive as it is inconvenient, expensive and insecure hence no harm if a better method
like electoral college is adopted for elective constitutional offices like the office of the deputy
56

president. Moreover, the claim that election by parliament can also be ethicized by the
legislatures themselves is rather not fatal because it easy to manage, for instance, by putting them
to shame by intensive work by the media than the same would do to the general public whose
majority of its members is illiterate and have little access to any necessary information but have
the numbers to wantonly harm each other.
5.3.4 Abolish Election and Re-adopt Appointment procedures
This is an alternative to the above discussed methods. Notably, any method of electing the
deputy president of Kenya may still not produce the most effective and desired result and
therefore a considered opinion that the process be abolished is not a strange one. Again, bearing
in mind that for purposes of a well-balanced government it is needed that presidency is
strengthened for the performance of its mandate and to prevent it from being undermined by the
office of the deputy president, that is possible if the president-elect is demanded by a stringent
procedural law to appoint a candidate from within or without the parliament who is to be vetted
and approved by a joint sitting of the parliament.
Preferably, the law should require the president to appoint a candidate from a minority party
(opposition) to make his government more inclusive, especially suggested to him by that party.
That does not undermine the role played by opposition parties in checking the government nor
does it projects any impasse for the performance of the president because opposition does not
mean governance duel or enmity or that those in opposition are ever interested in backtracking
the ability of the president. In fact that procedure could act as a very good system to heal the
country after rigorous and ethno-polarized campaigns.
5.3.5 Delimited and Specific Roles; the President of the Senate and/or Cabinet Secretary
Beyond being the principal assistant to the president, acting and succession roles many states fail
with regard to this office, USA, India and Kenya among them. It would be for international
repute and glory if Kenya gives model example. There is need to provide for and specify other
executive roles which the office of the deputy president serve. If public opinion can be sought
today in Kenya the result would show how wide the people recognize the relevance, stature and
importance of the office but one ask what really is its executive mandate. The constitution is
unclear about this, for yet again, that is left at the mercy of the president to assign duties to him.
What if he doesnt? It is in the public domain that budgetary allocation for this office is
57

incredible and thus to account for that it is only fair if such can be channeled to constitutionally
specified and executively significant roles.
In addition, such delimited and specified mandate can also be galvanized by other mandates for
purposes of good governance rich in separation of powers, checks, counter-checks and balances
and to save the situation concerning devolution. This can be done borrowing from USA and
India, by constitutionally enshrining a mandate of the deputy president as the president or the
head of the senate where he is to be allowed to break crucial ties and for Kenya this would be
exceptionally good for devolution interest and principle. Being that the system is new it needs
concerted support from the national government. It goes without saying that currently, when the
executive is not very close with the senate, the central government would appear to be in contest
with devolved government. Having the deputy president as the head of the senate which is the
house furthering the interest of the devolve units at the national level it will give it a national
status hence national concern for failure of devolution would be failure of the deputy president.
Further, since the deputy president may not have much to do in the executive he should double
up as a cabinet secretary. His constitutional role as a member of the cabinet is not clear and
therefore giving him something to do in the cabinet is not a bad idea. This suggestion is useful in
ensuring maximum utilization of constitutional offices and the human resources that are in office
via will of the people.
5.3.6 Same Party Policy and Reviewed Impeachment Procedures
In a case where the constitution requires a presidential candidate to nominate and be elected with
his running mate, electoral and political parties laws or just a matter of policy should demand
that the two candidates belong to one party. That is the very first instance to prevent negative
ethnicity because in most cases the two would come from different tribes into a party in which
all of them are members and active participants. Secondly, that would assist reduce any chances
of governance stalling in the event of difference in principles between the two. Reasonably, in
the same party the president would be obviously the head, the deputy would not pose much
threat to his ability to govern unlike the current situation of the law which allows the two to
influentially belong to different parties under a working agreement, and agreements can easily be
broken unlike political parties.

58

In the defense of the same issue of governance, but now with regard to personal integrity,
responsible and ethical leadership, it is finally suggested that the procedures for impeachment of
the deputy president should be reviewed in connection with suggestion of the same party policy
to ensure that the procedure is a bit simpler which could be used to kick out leaders whose
integrity are questionable. For instance, the India method could help, that is, by a mere dismissal
vote by simple majority in the senate. The majority vote dismissing the deputy president should,
mandatorily, uphold the rules of natural justice. When the impeachment process is heavily
riveted and rigid as it is now coupled up with the nature of party politics in Kenya, breaching
laws of personal integrity and leadership without being removed from office will be the order of
the day and the constitutional principle to first feel the pinch would be definitively
constitutionalism.
5.4 Chapter Summary
The chapter has put to rest the heated debate about the office of the deputy president of Kenya.
The major conclusion has been that the office is a threat to constitutionalism. In addition, the
history has not been very fair with the offices serving in the capacity of the now deputy
president, other countries lead the race by adopting better ways of doing things and therefore,
Kenya has to reform. The reform methods and/or formula include adopting a participatory
nominations guided by particular standards of reference, minority/majority ticket or runners up
formulae, severed election; popular or Electoral college, abolish election and readopt
appointment procedures, delimited and specific roles; the president of the senate and/or cabinet
secretary and finally, same party policy and reviewed impeachment procedures, to ensure that
the office does not stand a threat to constitutionalism.

59

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