Nairobi Governor Evans Kidero and his Homa Bay colleague Cyprian Awiti in Kisumu in 2014. Mr Kidero lost his seat to Mr Mike Sonko in 2017 while Mr Awiti was re-elected.
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Why experts can’t seem to agree on term limits for governors
There is confusion on whether governors who lost after serving one term can begin on a clean slate if they are elected next year.
This comes as a number of incumbents who lost in 2017 declare they will be on the ballot next year – some in different counties.
Grey areas also remain on the fate of governors who would have completed their mandatory two terms next year but are toying with the idea of seeking a fresh start in other counties.
While the law caps the term limit at two – five years each – experts differ on interpretation.
Former Nairobi Governor Evans Kidero has announced intention to contest the Homa Bay seat. Mr Kidero was beaten by Mr Mike Sonko in 2017 after serving one term.
Would Mr Kidero serve for two terms if he emerges victorious in Homa Bay?
Dr Mutakha Kangu, who chaired the Devolution Task force for the 2010 Constitution, says those who have served for one term in one county are eligible for two terms elsewhere.
“Governor term limits are for a specific county. Kakamega Governor Wycliffe Oparanya who would have served his two terms, for instance, can shift to Busia and run,” Dr Kangu says.
He adds that the Constitution does not limit one to in a particular county.
Mr Peter Wanyama, a legal expert who is usually consulted on devolution matters, says there is no law that stops a governor from contesting in another county.
The lawyer, however, adds that there is need for legal interpretation in court or Parliament to give Kenyans a direction in the issue.
He says term limits enhances accountability in governance.
“From a constitutional perspective, it does not make sense that one completes two terms in one county and then moves elsewhere. Such amounts to an absurdity. They can, however, run for other seats like MP,” he says.
What then is the fate of politicians like Kidero?
“On the question of two terms in Homa Bay, the National Assembly and the Senate need to address this issue and others that will arise,” Mr Wanyama said.
The constitutional culture developed over time in the federal system of Nigeria has ensured a governor does not run in another state on completing his or her terms.
Constitutional lawyer Paul Mwangi says allowing governors to run elsewhere, especially after exhausting their terms, would set a dangerous precedent.
“The idea of disqualification targets an individual. It therefore follows that even if they were to move to another county, they are still bound by the two-term limit in office,” he says.
Mr Mwangi adds that if there was no limit, we would end up with people remaining governors even for 20 years.
Mr Ferdinand Waititu is perhaps be the best illustration. He lost to Mr Kidero in 2013 in Nairobi but went on to be elected Kiambu governor in 2017.
Mr Waititu was, however, impeached before the end of his first term.
Potentially, he could exhaust his two terms in the capital and move to Kiambu to do the same or vice versa, if cleared.
For Solicitor-General Ken Ogeto, the matter is clear.
“If you have been a governor for two terms, you cannot move to another county and be elected. There may be no express provision on this but the purposive interpretation of our Constitution cannot allow a person to serve more than two terms,” he says.
According to the Solicitor-General, the wording of Article 180 (7a) addresses a “county” governor, no matter where one has served.
“A person shall not hold office as a county governor for more than two terms,” the article says.
He adds that Kenya is a unitary state and counties are not autonomous entities.
“This means Article 180 (7a) applies to any governor who has served two terms,” Mr Ogeto says.
Going by this interpretation, it means Mr Kidero, having already served one term in Nairobi, can only be elected for one more in Homa Bay, where he has joined a crowded field of hopefuls expecting to step into Mr Cyprian Awiti’s shoes.
Others who served one term and are reportedly planning to reclaim the seats are Treasury Cabinet Secretary Ukur Yatani (Marsabit), Sports Chief Administrative Secretary Simon Kachapin (West Pokot), Agriculture CS Peter Munya (Meru), Mr Isaac Ruto (Bomet), Mr Hussein Dado (Tana River), Mr Jack Ranguma (Kisumu) and Dr Julius Malombe (Kitui).
Mr Sonko and Mr Waititu retain their governor ambitions but will have to jump extra legal hurdles since they were impeached before the end of their first terms.
The matter will likely find its way to court for interpretation or an advisory opinion.
There have been instances of politicians jumping from one constituency to another, but the difference is that there are no term limits for parliamentarians.
Mr Kihika Kimani represented Nakuru North, Laikipia West and Molo in parliament at different times.
Mr Waititu was once Embakasi MP before shifting to Kabete.
Having been sworn into office after their bosses died or were impeached, some governors will be a special breed of candidates next year.
Dr Hilary Barchok took office following the death of Bomet Governor Joyce Laboso in 2019.
After the removal of Mr Waititu by the Kiambu County Assembly and Senate, Dr James Nyoro became governor in January 2020.
The two were running mates in the last General Election.
According to Article 182 (3a) of the Constitution, if a vacancy occurs in the office of governor, the deputy governor assumes office for the remainder of the term.
“If a person assumes office as governor under clause (2), the person shall be deemed for the purposes of Article 180 (7) to have served a full term as governor if, at the date on which the person assumed office, more than two and a half years remain before the date of the next regularly scheduled election,” it says.
But that will not apply for Nairobi where the case is still in court following Mr Sonko’s impeachment. The person taking over shall have served less than two years before the polls.
But it is Nyeri’s Mutahi Kahiga who will have served for the longest time, having been initially elected as Governor Wahome Gakuru’s deputy.
Dr Gakuru died in a road accident barely three months after being elected. Mr Kahiga took charge in November 2017.
