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Five months after the High Court dismissed the appointment of 50 Chief Administrative Secretaries (CASs) as unconstitutional, President William Ruto has moved to entrench the positions in law by amending the National Government Administration Laws.

The amendment bill, tabled just a week before the Court of Appeal rules on the matter, is sponsored by Majority Leader at the National Assembly Kimani Ichung’wah and seeks to provide for the establishment and functions of the Head of the Public Service and offices of CASs.

The bill also proposes to amend the National Security Council Act, 2012, to provide for the appointment of the National Security Advisor and also remove the Attorney General as the custodian of the public seal.

Ichung’wah, who published the bill yesterday, said the government is keen to formalise the positions and have legible individuals appointed. “We are bringing a procedural motion to pass the bill which seeks to entrench CASs as public officers.”

Yesterday, Busia Senator Okiya Omtatah and Law Society of Kenya (LSK) President Eric Theuri said the latest move is still unconstitutional and vowed to return to court should the proposal sail through Parliament.

“The amendment is unconstitutional because the CAS is a political office that cannot be created in law, by whatever means. An office in the public service can only be below the PS,” Omtatah told People Daily.

Appealed the ruling

Theuri said Parliament has no power to create the office as it purports to do vide amendment. “And since the amendment is outside the PSC Act, the office is outside the public service.

In any case, they are only skirting around, but have not complied with the High Court ruling that it is anchored in the Constitution,” he said.

President Ruto last year picked 50 individuals to the position of CASs but they were later stopped from assuming office by the High Court. The Attorney General has, however, appealed the ruling in the Court of Appeal which is set to rule on the matter next week.

While noting that the position was abolished last year, the High Court judges said: “Once that office was abolished on September 21, 2022, the newly-created office and complement of 23 office holders could no longer benefit from that stay.”

The 50 CAS were sworn in by President Ruto on March 23 after the National Assembly declined to vet them saying it had no constitutional authority to do so.

The High Court later issued orders barring the CASs from assuming office pending the hearing and determination of the petition.

Subsequently, the Judiciary said it did not preside over the swearing-in ceremony, noting that it did not send any official to State House to conduct the ceremony adding that it has no role whatsoever in the process. According to the bill, the complement of the CAS shall be determined by the Public Service Commission (PSC).

“The President shall, on the recommendation of the PSC and approval of the National Assembly, appoint Chief Administrative Secretaries,” reads the Bill which is in its First Reading.

The PSC has since pronounced itself on the matter by outlining the functions of a Chief Administrative Secretary which include; responding to issues/questions touching on the portfolio assigned to the office, providing liaison with the National Assembly and Senate, providing liaison with County Governments on matters of concurrent mandate and providing inter-ministerial /sectoral coordination among others.

President Ruto cited huge workload while defending his decision to appoint 50 CAS to deputize 22 Cabinet Secretaries.

He said despite reservations by some taxpayers on the appointments, the 50 designated as deputy ministers will deliver value for money.

President Ruto explained that for him to implement the Kenya Kwanza Alliance manifesto, he needs more hands-on deck for efficient delivery.

Sectorial coordination

The new Bill has articulated the qualifications of a CAS which include making it mandatory for a CAS to have a degree from a university recognised in Kenya. He or she should have knowledge of and experience in the public service.

A person will not be qualified to hold the position if he has been convicted of an offense carrying a penalty of imprisonment for a term of at least six months without the option of a f ine or has been adjudged bankrupt.

A CAS will be responsible for among others, to issues relating to the portfolio assigned to the office, liaising with Parliament and county governments on matters of concurrent mandate.
Other functions include providing inter-ministerial and sectorial coordination, representing the Cabinet Secretary at any meeting as directed by the CS, and performing any other duties assigned by the office of the AG.

CASs have assumed office despite a conservatory order barring them from doing so amid mounting opposition from the public. It has emerged that the 50 CASs had taken office with some having embarked on their new roles.