Why Kenya is sitting on a constitutional time bomb

Kenya faces a potential constitutional crisis as the country lacks both a substantive deputy president and a functional electoral commission, raising concerns about succession and governance.

Both the National Assembly and the Senate recently impeached Rigathi Gachagua as the deputy president, while the newly nominated DP, Kithure Kindiki, has yet to be sworn in.

This vacuum creates ambiguity over who would assume leadership if the president were suddenly unable to serve.

According to Article 146 of the Constitution, the deputy president should step in if the president’s office becomes vacant due to death, resignation, or other specified reasons. If the deputy president’s office is also vacant, the Speaker of the National Assembly is designated as the acting president.

Constitutional lawyer Ken Echesa warns that Kenya currently has no clear line of succession, as the legal battles surrounding Gachagua’s impeachment remain unresolved.

“Without a substantive deputy president, should anything happen to the president, Gachagua could ascend to power if the court finds his impeachment incomplete,” Echesa explains.

He further adds that if the Senate’s vote is overturned, creating a vacancy in the deputy president’s office, National Assembly Speaker Moses Wetang’ula would be next in line to act as president until elections are held.

This fragile arrangement, Echesa notes, highlights the critical role of the Speaker.

"Today, the Speaker is the most protected figure; if he is unavailable to act as president, we face a constitutional crisis," he says.

IEBC quagmire

The Constitution mandates a new presidential election within 60 days of a vacancy, but this process may be compromised by the lack of a properly functioning electoral body.

Political risk analyst Dismas Mokua echoes concerns over the deputy president’s legal status and warns of the country’s precarious situation without an active Independent Electoral and Boundaries Commission (IEBC).

“Kenya’s political structure under the 2010 Constitution is at risk. We lack both a substantive deputy president and a fully constituted IEBC, which jeopardises national stability,” Mokua states.

The IEBC, left leaderless since the exit of Wafula Chebukati and his commissioners over alleged interference in the 2022 presidential election, has yet to be reconstituted.

Efforts to reassemble the IEBC have been mired in political strife. Mokua attributes the delay to “mischievous political maneuvers” by non-parliamentary leaders seeking control over the selection process.

However, a recent High Court ruling approved the establishment of an IEBC selection committee, noting the urgent need for a functional electoral agency.

The IEBC (Amendment) 2024 Act, stemming from a NADCO report by the Opposition and government leaders, aims to create an inclusive electoral commission.

On Thursday, the Azimio la Umoja coalition settled on lawyer Koki Muli-Grignon to represent the coalition in the IEBC selection panel tasked with selecting commissioners. This now paves the way for their gazettement and swearing-in of the panel, the team responsible for hiring new commissioners.

Mokua insists that Kenya must expedite the NADCO report's implementation to ensure inclusive governance. “NADCO lays a foundation for strong institutions and aligns with Kenya’s national interests, reinforcing the principles in Article 10 and Chapter Six of the Constitution,” he adds.

As Kenya navigates these constitutional uncertainties, experts have called for swift action to secure a stable succession framework and reinstate the IEBC, noting that the country’s democratic future depends on the strength of its institutions and adherence to the rule of law.