Article 3(3) of the National Accord and Reconciliation Act 2008 (NARA) provides that “Each member of the coalition shall nominate one person from the elected members of the National Assembly to be appointed a Deputy Prime Minister.”
Under this article, Kibaki nominated Uhuru Kenyatta and Raila nominated Musalia Mudavadi to serve as Deputy Prime Minister.
While it’s clear as can be that each principal has the right under NARA to nominate one of the two DPMs, it’s also clear and for reasons that are now moot, neither principal can on his own remove either of the principals.
Suffice to say these reasons bring back bad memories about the events leading up to the signing of the coalition and how one side used its position to heavily tilt not only the coalition agreement in its favor but the ensuing power sharing.
Be that as it may be, Article 4(4) provides,
The office of the Prime Minister and the Deputy Prime Minister shall become vacant only if—
(a) the holder of the office dies, resigns or ceases to be a member of the National Assembly otherwise than by reason of the dissolution of Parliament;
(b) the National Assembly passes a resolution which is supported by a majority of all the members of the National Assembly, excluding the ex-officio members, and of which not less than seven days notice has been given, declaring that the National Assembly has no confidence in the Prime Minister or Deputy Prime Minister, as the case may be; or
(c) the coalition is dissolved.
There is no question ODM is the party with a majority of members in Parliament.
However, one must have just landed from Mars not to know that if ODM were to bring a motion of no confidence against Mudavadi as a means of having him removed as DPM, there is no guarantee that all of those ODM members and those allied to the party will vote in favor of the motion.
That’s our parliament and in case the one just landing in Kenya is confused or at least not clear as to why, it won’t be because those voting against the motion will do so on principle.
So, a motion of no confidence is out as a matter of practical reality to remove Mudavadi as DPM—and ditto for removing Uhuru.
This leaves death, resignation or ceasing to hold office as MP and dissolution of Parliament as the only other ways Mudavadi or Uhuru can cease to hold office as DPM.
The last we know both are still breathing so death is out as an option.
The coalition is intact, so, that, too, is out as an option.
The wise thing for Mudavadi or Uhuru could do if they believe in the rule of law is to resign but neither has proven to be this wise.
So, unless they both gain some additional wisdom and resign, resignation, too is out as an option, except by operation of law as I point out below.
Which leaves “ceasing to hold office as MP” as the only other way they can be found to be illegally holding office as DPM.
After weeks of whining that he was being denied his democratic right to seek the nomination to vie as president under ODM, Mudavadi defected from ODM to join UDF where he is carrying himself as the presumptive nominee no different than what he pretended to decry while at ODM.
To say Mudavadi is an hypocrite on this will be stating the obvious.
Having defected from ODM and joined UDF, Mudavadi is no longer legally a member of Parliament because Article 14(5) of the Political Parties Act provides as follows:
A person who, while being a member of a political party—
(a) forms another political party;
(b) joins in the formation of another political party;
(c) joins another political party;
(d) in any way or manner, publicly advocates for the formation of another political party; or
(e) promotes the ideology, interests or policies of another political party;
shall, notwithstanding the provisions of subsection (1) or the provisions of any other written law, be deemed to have resigned from the previous political party. (Emphasis mine).
So, under the law, both Mudavadi and Uhuru ceased to be members of Parliament by virtue of their resignation under Article 14(5) because they both left the parties they were elected to Parliament and joined others they now seek the presidency to continue their love-fest with impunity.
Because they are no longer members of Parliament, neither Mudavadi nor Uhuru can legally hold the office of DPM because being an MP is a requirement for that office under Article 3(3) of NARA.