The Constitution of Kenya envisioned situations in which state officials, presidents included, may or would be removed from power for one reason or another. Pre-2010, most state officials would be hired and fired at the behest of the president. It was rarely on the merit or demerit of the individual.

So, who qualifies to be a state officer? Article 260 of the Constitution defines a state officer as a person who holds a state office. This includes the president, deputy president, governor, and cabinet secretaries, among others. The deputy president is the most relevant to this article.

Election of the deputy president and his functions

Article 148 states that each presidential candidate shall nominate a person who is qualified for nomination for election as president as a candidate for deputy president.  Under clause (1), there shall be no separate nomination process for the deputy president and Article 137(1)(d) shall not apply to a candidate for deputy president.  The Independent Electoral and Boundaries Commission (IEBC) shall declare the candidate nominated by the person who is elected as the President to be elected as the deputy president. The swearing-in of the deputy president-elect shall be before the Chief Justice or, in their absence, the Deputy Chief Justice and in public.

The deputy president-elect takes office on the same day as the President-elect and serves from the date sworn in until the next President-elect is sworn in, upon assuming the office of the President, or resignation, death or removal from office under the conditions provided by the Constitution.

The duties of the deputy president are outlined in Article 147 of the Constitution. Summarily, the deputy president shall be the principal assistant of the President and shall deputise for the President in the execution of his/her functions. He shall perform the functions conferred to him and any other functions of the President as assigned. If absent or temporarily incapacitated, and during any other period that the President decides, the deputy president shall act as the head of state. Lastly, the deputy president shall not hold any other public office.  

Adherence to national values and conduct of state officers

By virtue of being a state officer as per the interpretation of Article 260 of the 2010 Constitution, the deputy president is required to follow national values and principles of governance enshrined in Article 10(1), which is binding on all state organs, public officers and all persons whenever any of them— (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. Further, Article 10(2) lists the national values as follows:

• Patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.
• Human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalised.
• Good governance, integrity, transparency and accountability.
• Sustainable development.

Moreover, the Provisions of Article 75 (1) dictate that a state officer is required to behave, whether in public and official life, in private life, or association with other persons, in a manner that avoids any conflict between personal interests and public or official duties, compromises any public or official interest in favour of personal interest, or demeaning the office the officer holds.

It is important to note that the National Assembly shall review the conduct of the President and deputy president, as well as all other state officers. They shall initiate the process for their removal from office, as stipulated in Article 95(5) of the Constitution of Kenya.

Removal of the deputy president

Article 150 of the 2010 Constitution states that the deputy president may be removed from office:

1. a) On the grounds of physical or mental incapacity to perform the functions of the office.
2. b) On impeachment:

(i)              On the grounds of a gross violation of a provision of the Constitution or any other law.

(ii)             Where there are serious reasons to believe that the deputy president has committed a crime under national or international law.

(iii)            For gross misconduct.

Further, in Sub-article 2, the provisions of Articles 144 and 145 relating to the removal of the President shall apply, with the necessary modifications, to the removal of the deputy president.

Procedure for impeachment

Article 145 addresses the removal of the deputy president by impeachment. The procedure is as follows:

1. A member of the National Assembly, supported by at least a third of all the members, may move a motion for the impeachment of the deputy president on the grounds of:
2. a)    A gross violation of a provision of this Constitution or any other law.
3. b)    Where there are serious reasons for believing that the President has committed a crime under national or international law.
4. c)    There is an allegation of gross misconduct.
5. If a motion under clause (1) is supported by at least two-thirds of all the members of the National Assembly:

(a) The Speaker shall inform the Speaker of the Senate of that resolution within two days.

(b) The deputy president shall continue to perform the functions of the office pending the outcome of the proceedings required by this Article.

3. Within seven days after receiving notice of a resolution from the Speaker of the National Assembly:
4. a)    The Speaker of the Senate shall convene a meeting of the Senate to hear charges against the deputy president.
5. b)    The Senate, by resolution, may appoint a special committee comprising 11 of its members to investigate the matter.

It is important to note that Senate Standing Order 101(1) outlines that the grounds for impeachment should be fair by ensuring that neither the personal conduct of the President, the Speaker, judges, persons performing judicial functions, government representative, the holder of an office whose removal from such office is dependent upon a decision of the Senate shall be referred to adversely, except upon a specific substantive motion of which at least three days’ notice has been given.

4. A special committee appointed under clause (3)(b) shall:
5. a)    Investigate the matter.
6. b)    Report to the Senate within ten days whether it finds the particulars of the allegations against the President to have been substantiated.
7. The deputy president shall have the right to appear and be represented before the special committee during its investigations.
8. If the special committee reports that the particulars of any allegation against the deputy president have not been substantiated, further proceedings shall not be taken under this Article in respect of that allegation. Or the Senate shall accord the deputy president an opportunity to be heard and vote on the impeachment charges.
9. If at least two-thirds of all the members of the Senate vote to uphold any impeachment charge, the deputy president shall cease to hold office.