In the legal advice to Kimemia, the AG said all Cabinet Ministers will also cease to hold office once new ministers are appointed to take over their roles/FILE
In a letter to the Head of the Civil Service Francis Kimemia, Muigai said President Kibaki, Odinga and the Vice President would remain in office until a new president takes over.
In the legal advice dated March 13, 2013, the AG added that all Cabinet Ministers will cease holding office once new ministers are appointed.
“This provision would therefore require the Prime Minister, Vice President, Deputy PMs and other ministers to continue to hold office until an incoming president has appointed a new Cabinet to provide continuity in the administration of the Government,” Muigai said in his legal opinion.
Muigai further explained that the electoral process was still ongoing and would be completed after all the elected leaders are gazetted and sworn in.
Article 12 (1), under the Sixth Schedule of the transitional clauses, states that the President and Prime Minister shall continue serving office until the first General Election is held under the new Constitution unless they vacate office.
Article 12 (2), gives similar provisions to Vice President, Deputy Prime Ministers, ministers and their assistants.
“It is logical to conclude that the election is not a single event that ended on March 4, 2013 but a continuous process beginning with the casting of the ballot, declaration and gazettement of the results and the establishment of all constitutional organs anticipated by the Election,” he argued.
He also argued that a leadership vacuum would be created if Cabinet Ministers vacated office before new officers were gazetted.
The AG has advised Kimemia to ensure holders of these offices, including the Prime Minister are treated equally as required until the day they relinquish their offices as stipulated in the Constitution.
“In this regard the absence of a Cabinet would occasion a crisis as there are many other constitutional organs that require ministerial representation and are necessary for the management of the State like the National Security Council,” he noted.
Nyachae had earlier stated his position on the matter arguing that the said officers were illegally in office.
He added that any economic deals made by ministers on behalf of Kenya after March 4 could be challenged because their mandate would have expired.
“If today a person who was a minister before last week Monday enters into an agreement that purports to bind Kenya, for example with the Chinese government, a question arises on whether or not it is binding,” he argued.
He told journalists at the Kenyatta International Conference Centre that Permanent Secretaries could provide sufficient leadership to the ministries in the absence of Ministers and their assistants.
Nyachae maintained that the Constitution only stated that the president ought to remain in office until a new one was sworn in but did not give such direction to Cabinet ministers.
Article 142 of the Constitution states that the President shall remain in office until the next President is sworn in.
“If you look at the transitional provisions in respect to all the other offices then our plain reading of the Constitution is that those other terms expired on the first General Election under the Constitution,” he argued.
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