Kenya dispatch: High Court ruling rejecting constitutionality of president’s cabinet deputy secretary appointments faces state appeal Dispatches
© NTV Kenya News
Kenya dispatch: High Court ruling rejecting constitutionality of president’s cabinet deputy secretary appointments faces state appeal

Aynsley Genga is a JURIST Senior Correspondent in Kenya. She files this dispatch from Nairobi.

On Monday, 3rd July, the High Court of Kenya declared President William Ruto’s appointment of 50 Chief Administrative Secretaries (CAS) as unconstitutional. In a majority decision (2/3), the judges declared that due to lack of proper public participation as stipulated under article 10 of the Constitution of Kenya (CoK) the appointments were therefore null and void. The judges further explained that even though there was “some reasonable public participation” on the first complement of 23 CASs, there was no such participation regarding the additional 27.

 

The office of CAS was created in order to provide deputies for the Cabinet secretaries and help them to better coordinate the running of the affairs of their respective ministries. On paper, this might seem like a positive development, but in actuality it simply a duplication of the office of the Principle Secretary established under article 155 of the CoK. It is due to this that the position has been rejected by the public time and time again. This was first seen in 2018 when former President Uhuru introduced the office before it was finally declared unconstitutional. Now it has been seen again during the era of President Ruto.

If so many members the general public are against the establishment of the office of CAS, then why does the government still continue to advocate for it? The answer is simple: everyone knows that the position is used to reward those who are loyal to the government but lost during the general elections or failed to become ministers. It was seen during former President Uhuru’s time and the trend still persists even during President Ruto’s time. This is actually the main reason why so many are against its establishment. In fact, on Monday many were happy with the High Court’s decision since many feared that the Judiciary would side with the government rather than standing for justice. Members of the public took to online platforms such as Twitter in order to express how pleased they were with the ruling. However, there are also those who have expressed their anger with the decision, especially those who are supporters of the CAS appointees. Some supporters have even gone online and made threats at the Judiciary.

We have even had politicians who have come out to either express their support or opposition in regard to the ruling. On Tuesday, Dagoretti North Member of Parliament Beatrice Elachi, a former Gender and Public Service CAS, came out to advocate on the importance of the position. In her opinion, the Public Service Commission failed to properly state the mandate and role of CAS which has led to a lack of support amongst the masses. Additionally, she claimed that the President erred in adding 27 extra CAS positions.

 

There have also been lawyers such as Paul Mwangi who have come out to support the High Court’s decision. He stated that if the President wants to appoint CAS then the constitution must be amended in order for it to make a comeback in the Executive. Moreover, he stated that the public must be consulted in the decision-making process. Mwangi further raised an important question: what is the number limit regarding this position? This question stems from the fact that Article 152 of the Constitution states that the Cabinet shall consist of not fewer than 14 and not more than 22 Cabinet Secretaries. If that is indeed the case, then why does CAS who are meant to act as deputies sum up to 50 appointees? The numbers do not add up and the fact that these people earn high salaries has further angered Kenyans who are currently battling the high cost of living after the Finance Bill was passed and signed by the President despite their protests against it.

As it currently stands, on Tuesday, Attorney General (AG) Justin Muturi has filed a notice of appeal against Monday’s High Court ruling that invalidated the CAS appointment. It does not come as a surprise, since people already suspected that this would happen. But regarding how the Court of Appeal will determine the matter, only time will tell. Many hope they will stand for Truth and Justice, but a vast majority are already in doubt since they lost faith in the Judiciary after how they handled the Presidential Election Petition last year.

 

Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
THIS DAY @ LAW

Germany surrenders unconditionally, ending WWII in Europe

On May 7, 1945, General Gustav Jodl, on behalf of Germany, signed an unconditional surrender, effectively ending World War II in Europe. The surrender was formally accepted by the Allied Powers the next day, May 8, which came to be known as Victory in Europe (VE) Day.

Read World War II legal documents, treaties, and declarations from the Avalon Project at the Yale University School of Law.

27th Amendment to US Constitution ratified

On May 7, 1992, the Twenty-seventh Amendment to the US Constitution was ratified, barring Congress from granting its members pay raises in the middle of terms. The Amendment had initially been proposed in 1789 by James Madison, but only became law after a grass-roots campaign in the 1980s against "excessive" Congressional privileges. Learn more about the Twenty-seventh Amendment.