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The High Court yesterday ruled that the process towards establishment of the office of Chief Administrative Secretary (CAS) were in contravention of the Constitution and the Public Service Act. 

High Court judge Antony Mrima ruled that the President can only appoint persons to the position of CAS upon such a person being shortlisted, interviewed, recommended for appointment by the Public Service Commission (PSC) and on approval by the National Assembly, which had not been done in the case of the current office holders.

“The process in establishing the office of the CAS and the manner in which the processes towards recommending the persons for nomination to the position of Principal Secretaries was undertaken by PSC, called for compliance with the Constitution as well as the PSC Act, as to be subjected to a programme of public participation and stakeholder engagement,” ruled the judge.

Without vetting

The judge also ruled that Cabinet Secretaries (CS) and Permanent Secretaries (PSs)  who continued to serve without vetting in 2017 are in office illegally.

“Any CS who served during the first term of H.E. President Uhuru and continues to serve during the second term without having been approved by the National Assembly upon the President’s re-election, is in office in contravention of the Constitution,” ruled the judge.

The judge, however, suspended the coming into force of the judgment for 30 days to allow the Attorney General (AG) to prepare a report on CSs, PSs and CASs. 

“The AG shall, within 30 days of this judgment, file in this matter an affidavit giving, the following details; the members of the Cabinet in January 2018, the current members of the Cabinet, the gender, age and ethnicity of the current CSs and PSs,” the judge ruled.

According to Justice Mrima, the two thirds gender rule must be realised immediately for appointive positions.

The judge was making a ruling in a petition filed by activist Okiya Omtatah and others challenging the said positions, saying they were illegal and unconstitutional.

Omtatah had sued the PSC, the AG, the Speaker of the National Assembly, and all the CASs and CSs who were not vetted afresh by Parliament upon Uhuru’s re-election.

He had argued that lack of vetting of CSs and PSs was unconstitutional as they are not transferable from one term of the President to another.

Omtatah also argued that CASs are political appointees who are not part of the Public Service but part of the Executive as Assistant CSs.

He claimed that their appointment is for a political goal of realising “a government that reflects the diversity of our nation”.

“The petitioner is aggrieved that the impugned creation of the office of CAS creates the totally unnatural and unconstitutional situation whereby PSs, who are constitutional office holders, will be forced to report to CASs who are not holders of constitutional offices,” he claimed.

Yesterday’s ruling, if effected, will see 35 CASs serving in different ministries rendered jobless. The group comprises technocrats, seasoned politicians and public servants of all ages.

Those holding the plum jobs include former Cabinet Ministers Chris Obure, Linah Jebii Kilimo and Ababu Namwamba, politicians Rachael Shebesh, Peter Odoyo, Simon Kachapin, Gideon Mung’aro, Ken Obura, former Inspector General of Police Joseph Boinnet, technocrats Mercy Mwangangi and Rashid Aman, among others.

Aman and Mwangangi, who both serve in the Health docket, are some of the most visible CASs since the outbreak of the Covid-19 pandemic, owing to their articulate handling of the daily media updates.

The latest group of CASs was appointed on February 18, this year, and are yet to make an impact in their various dockets.

They include David Osiany, a vocal supporter of ODM leader Raila Odinga, who was appointed CAS for Industrialisation, Trade and Enterprise Development and Eric Simiyu Wafukho (National Treasury and Planning), a key ally of Amani National Congress (ANC) leader Musalia Mudavadi.

The CSs who continued to serve without vetting in 2017 and are, therefore in office illegally, include Fred Matiang’i (Interior), James Macharia (Transport), Joe Mucheru (ICT), Eugene Wamalwa (Devolution), Charles Keter (Energy) Raychelle Omamo (Foreign Affairs), Adan Mohamed, (East Africa Community), Sicily Kariuki (Water), Najib Balala (Tourism) and Amina Mohamed (Sports).

Omtatah had said the ministers and PSs must be vetted afresh by the National Assembly when appointed to serve in the President’s second term.

The petitioners also argued the CASs were appointed at a time when the country’s ballooning wage bill was a matter of grave public concern.

“No consideration has been given to the costs of running the new offices of CASs in all government ministries… also handpicking and appointing persons to be CASs, without subjecting them to a merit-based competitive recruitment process, the government violated the Constitution,” argued Omtatah.

Uhuru surprised many when he announced the creation of the position, prompting a section of rights activists to rush to court to block it.

Having appointed ‘technocrats’ and three politicians who had assured him that they will not dabble in politics, in his first term; President Kenyatta seemed to have seen a gap in the Cabinet that needed to be filled.

The 2010 Constitution had removed the post of assistant minister, therefore limiting the President’s capacity to reward his loyalists and election losers, something that comes in handy in the rough and tumble of politics.

“The CAS would broadly be responsible for helping the CS to better coordinate the running of the affairs of their respective ministries,” said Uhuru when unveiling the first batch of the CAS in January 2018.

Constitutional limit

But in his suit, Omtatah said: “The creation of the CAS in all government ministries by the President in consultation with the PSC is invalid, null and void and of no legal effect.”

Political observers have argued that the President is using this “loophole” to firm up his administration and shore up support particularly in opposition areas.

And, unlike Cabinet positions, which are spelt out in the Constitution at a maximum of 22, the CAS position accords the President the leeway to appoint whomever he wants, considering that the appointees are not subjected to vetting by Parliament.

There is also no constitutional limit on the number of people he can appoint for the position, which acts like an assistant minister and ranks below the Cabinet minister, but above the principal secretary.

Public Service, Youth and Gender Affairs Cabinet Secretary Margaret Kobia has previously maintained that the President acted within the law and consulted widely before creating the position, “to alleviate the huge work load on Cabinet Secretaries.”

“The Constitution is very clear that the President can establish any office in the Public Service.

But it does not explain at what level of the Job group. That means that the President has a latitude in consultation and recommendation of the Public Service Commission,”  Kobia disclosed.