The argument that Professor Kindiki cannot be a Deputy President because he did not resign from the Cabinet three months before appointment or that he is not a member of UDA or that IEBC must first nominate him are tired arguments and fly in the face of the 2010 constitutional democracy clear text.
The constitution envisions two distinct paths to assuming the Office of the Deputy President.
They should not be mixed up for the reason that while one way of assuming office is through the election, the Kenyan constitution does not require an election upon removal by impeachment.
The constitution empowers the relevant offices to choose replacements for the Deputy President.
The only thing to be done before Prof Kindiki takes office is to take an oath or affirmation of allegiance and the oath of affirmation prescribed in the Third Schedule of the Constitution.
The first path is through the regular general elections where one becomes a candidate and is guided by different schemes of requirements including resigning 90 days before the general election unless one is a member of parliament or the presidency and then popular votes in an election.
The second path to becoming a Deputy President is through Article 149 of the constitution. This provides for a replacement following a vacancy in the Office of Deputy President and the power is given to the President to nominate the replacement.
Article 149 (2) provides the distinction by acknowledging that “If a person assumes office as Deputy President under clause (1), then, for the purposes of Article 148 (8), the person shall be deemed--“
Clause One referred to above is specifically the nomination by the President upon vacancy which must be done within 14 days after a vacancy arises.
They are not nominated to be a candidate for election to the office but to fill the vacancy subject to approval by the National Assembly.
This is not a candidate for elections but a nominee of the President to the vacant office because the constitution empowers the President.
That is why clause 148(8), even provides that for those appointed by the President, their terms shall be deemed to have started at the beginning, the deeming effect of the law is to say the law shall assume they were there elected from the beginning of the term but knowing they were not hence deemed.
That is why even article 148 (3) requires the IEBC Commission to declare the elected candidate as the Deputy President is irrelevant because there is no election or contest to declare which Candidate becomes the Deputy President because the one assuming the office is not a creature of the election presided by the IEBC but a direct appointment by the President to the vacant office not for purpose of elections.
The path to the election prescribed by the IEBC uses the word Deputy President-elect which cannot be the case in the direct nomination to the Office by the President.
Before one becomes the Deputy President-elect, the section calls them the Deputy President Candidate nominee this should not be confused with the Deputy President nominee to fill the vacancy. They are not candidates.
So IEBC and elections only come in when the Speaker takes over and there is no President or Deputy, which is not the case hence the absence of Commissioners in IEBC is irrelevant to the current transition.
Article 147 (4) on the functions of the Deputy President states that the Deputy President shall not hold any other state or public office.
This is upon assuming the Office of the Deputy President after taking the prescribed oath.
Article 149 of the constitution is titled vacancy in the Office of Deputy President and prescribes how that is to be filled.
Therefore, the requirement that one cannot be a state or public Officer logically follows after one has assumed the Office of the Deputy President as a replacement not before.
In the General election, there is a requirement for not being in a public or state office.
The Constitution specifies in Article 149 that the President is to nominate upon vacancy a Deputy President within 14 days of vacancy, which logically means that whoever is nominated within 14 days cannot meet the requirement of the 3 months before election resignation otherwise the Constitution will be contradicting itself.
The only "official ceremony" required by the Constitution is that any president must take the oath of office.
In conclusion, the Constitution provides that the qualifications of a Deputy President are similar to those of the President and they are mirror image to those of a member of parliament.
Article 2 of the constitution provides that it is supreme and binds all persons and state organs.
That means that the President in exercising his power to nominate the Deputy President must make sure they meet the criteria set out by the constitution which is simply the qualifications similar to a member of parliament. Indeed Prof Kindiki meets the qualifications.
Let us stop torturing the Constitution with wrong readings.
John Adams said, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”.