A storm is brewing in the National Assembly over the nomination of Musalia Mudavadi as Prime Cabinet Secretary (PCS) after the opposition Azimio-One Kenya Coalition members argued that it was unconstitutional.

Yesterday, a meeting called by the Appointments Committee chairman, Speaker Moses Wetang’ula, to set ground rules for the vetting of CS nominees, which starts on Monday, was interrupted after Azimio members sought direction on whether the position is provided for in the Constitution.

House Minority Leader Opiyo Wandayi challenged Wetang’ula to provide directions on whether the team should vet Mudavadi on Monday despite his position not being provided for in the supreme law.

Wandayi argued that the Constitution only provides for the President, Deputy President, Cabinet Secretary and Attorney General positions and that there is no provision for Prime Cabinet Secretary.  

“I am the one who brought to the attention of the Speaker that this position of Prime CS is not provided for in the Constitution. It is either they rename that position and give it another title because this one is not right because it is like creating another office,” he said.

“The President can appoint him as CS without portfolio to make it legal, otherwise we are not going to allow our Constitution to be mutilated.”

Following the move, Wetang’ula promised to issue a communication on the way forward on Monday before the vetting process begins. Mudavadi is scheduled to be the first to appear before the committee on the same day at about 9 am.

President William Ruto nominated the Amani National Congress leader on September 27 for the position specially created for him following a deal the two signed early this year when they agreed to work together.

Mudavadi — a former Vice-President who also served as Deputy Prime Minister in the Grand Coalition government — will appear before the vetting panel chaired by Wetang’ula, his close political ally. The two joined hands with Ruto on January 23.

They both left the One Kenya Alliance (OKA), which had other leaders including Kalonzo Musyoka of the Wiper Party, Gideon Moi of Kanu, Martha Karua of Narc-Kenya and Moses Kuria of Chama Cha Kazi.

They, together with Kuria, later opted to work with then Deputy President Ruto while Musyoka, Moi and Karua joined Azimio.

Powerful post

Their decision has been rewarded with lucrative positions with Wetang’ula taking over the National Assembly’s Speaker’s post and with Mudavadi now expected to be appointed Prime CS if approved for the seat set to be the third powerful Executive position in government after that of President and Deputy President. 

When he formally nominated him last month, President Ruto said Mudavadi will be tasked with assisting the President and his Deputy, Rigathi Gachagua, “to coordinate and supervise ministries” and State departments. Additionally, he will lead the Kenya Kwanza administration’s legislative agenda in consultation with the two and the coalition’s leaders in Parliament. He will also perform any other role as may be assigned by the President.

Mudavadi’s responsibilities mirror those of Raila Odinga when he served as Prime Minister between 2007 and 2012 under the then President Mwai Kibaki’s Grand Coalition government. He was appointed to the position after the signing of the National Accord and Reconciliation Act 2008, which ended post-election violence sparked by a dispute over the results of the 2007 presidential election.

Mudavadi was one of Raila’s deputies, the other being Uhuru Kenyatta, who went on to win the 2013 and 2017 presidential elections before retiring last month in line with the Constitution.

Questions might arise around the legality of Mudavadi’s proposed position during the vetting to be conducted at County Hall in Nairobi with the ruling alliance being accused of failure to craft legislation anchoring the position in law.

The vetting is likely to be televised live although the interviews for Permanent Secretaries and Director of Criminal Investigations nominees have been closed to the media and the public.

In anticipation of the legal challenge likely to greet the new position, Ruto, Mudavadi and Wetang’ula recommended an amendment of the law to accommodate it when they signed their agreement earlier this year.

Existing structures

“The legislation so introduced shall amend the National Government Coordination Act of 2013 to include the office of the Prime Cabinet Secretary and incorporate and align the functions of PCS as proposed herein to the existing structures under the aforesaid Act,” the agreement says.

Besides Mudavadi, former National Assembly Speaker Justin Muturi will also face the committee on Monday after being nominated as the next Attorney General.

Muturi was the House Speaker for 10 years (2013-2022) and will be interviewed by some of the MPs he presided over during his tenure. If approved, he will replace Kihara Kariuki.

Lawmakers Aden Duale (Garissa Township) and Alice Wahome (Kandara) will also appear before the committee on the same day. The President picked them for Defence and Water dockets respectively. Also to face the committee on the same day is Alfred Mutua (Foreign Affairs).

On Tuesday, it will be the turn for Kithure Kindiki (Interior and National Administration),  former Central Bank governor Njuguna Ndung’u (National Treasury), Aisha Jumwa (Public Service), Davis Chirchir (Energy) and Moses Kuria (Trade).

Others will appear between Wednesday and Saturday when the vetting will end.

The last to be vetted will be Secretary to the Cabinet Mercy Wanjau, who is seeking to be the second person to occupy the constitutional office that has remained vacant since 2013 but is held in the interim by Joseph Kinyua. 

In a notice published on Thursday, Assembly Acting Clerk Serah Kioko asked all the nominees to ensure they carry along clearance from the Ethics and Anti-Corruption Commission, Kenya Revenue Authority, Higher Education Loans Board, Directorate of Criminal Investigations and Credit Reference Bureaus.

Lurambi MP Titus Khamala (ODM) has said Mudavadi should not be vetted on the grounds that his stature is beyond scrutiny by MPs. “Every country has its eminent personalities who are held in high regard and Mudavadi is one of those in Kenya,” the MP said in Kakamega. “How can MPs who are junior to Mudavadi subject him to scrutiny?”  Khamala is a former ANC member. Although he is an MP, he is not a member of the Appointments Committee but could join as a friend.

Additional reporting by Dennis Lumiti