When the presidential polls opened on 9 August 2022, President Uhuru Kenyatta automatically became a caretaker president as per the constitution, and slid into the “temporary incumbency” phase. What this meant was that the president’s powers were clipped as a measure to wean him off the presidency as he readied himself to hand over power to his successor, the anticipated President-elect. It is for this reason that you may or may not have noticed that President Kenyatta has been governing in the shadows.
According to Article 134 of the Constitution, temporary incumbency of the President occurs “during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected President assumes office.”
Other than provisions of Article 134, Article 147 (3) of the Constitution provides for the only other occasion where temporary incumbency may occur, in instances where “the sitting President is absent or is temporarily incapacitated, and during any other period that the President decides, the Deputy President shall act as the President.” An example of when Article 147 (3) kicked in was in October 2014, when President Kenyatta left the country to attend the pre-trial status conference at the International Criminal Court (ICC) at The Hague, leaving Deputy President William Ruto as the temporary incumbent.
Limitations of a Sitting President
And so much as President Uhuru Kenyatta remains in office, the limitations of power during this transition period (the things he cannot do) extends to his inability to:
- Nominate or appoint judges of superior courts.
- Nominate or appoint any other public officer whom the Constitution or legislation requires the President to appoint.
- Nominate or appoint or dismiss a high commissioner, ambassador, or diplomatic or consular representative.
- Nominate or appoint or dismiss Cabinet Secretaries and other State or Public officers.
- Exercise the power of mercy to Kenyans facing convictions.
- Confer honours in the name of the people and the republic.
This is what is meant by temporary incumbency, an almost half-presidency.