Pensive moment as CAS nominees await fate today

Individuals angling for the position of Chief Administrative Secretary (CAS), will have to wait a little longer after Speaker Moses Wetang’ula said he would make a ruling on the constitutionality of the National Government Administrative Laws (Amendment Bill) 2023 today.

The bill which is in its Second reading seeks to create the position of the CAS and that of the Chief of Staff.

Leader of Minority Opiyo Wandayi had protested that passing the bill in its current form would be entertaining litigation similar to the earlier one that led to the High Court declaring the position illegal.

Wandayi said the offices of the CAS and the Chief of Staff as contained in the bill are outright unconstitutional. And therefore, parliament cannot proceed, and should not proceed to process it in its current form.

“In short you are creating the position of the CAS above that of the Principal Secretary, he is essentially a deputy CS and you are creating this office outside the Constitution. This is an arena that we should be careful not to venture into,” Wandayi cautioned.

He continued, “If we do so, we will be setting ourselves as a House to very needless litigations and we know the verdict.”

Ainabkoi MP, Samuel Chepkonga, while defending the proposed legislation, said it was motivated by the need to anchor the positions of the CAS and that of the Chief of Staff in law.

“I expected the Minority Leader to have quoted extensively from the case law. This matter has been litigated upon, he knows the decision of the Court in Kenyatta II, when this position was declared to be unconstitutional. It was declared to be unconstitutional because there was no law that established it,” Chepkonga explained.

He said the advice from the court on the matter was simple ‘Go and pass law in Parliament’.
Suba South MP Omondi Caroli said the President has powers to appoint individuals to any position apart from those affixed to the constitution.

“I was the first Chief of Staff in this country and i can confirm that the President has powers to appoint using an Executive order,” Caroli said.

Justice and Legal Affairs Committee (JLAC) chairperson Gitonga Murugara, the mover of the bill defended it against claims that CASs were state officers.

“Let me make it clear, state officers are set out in the Constitution, who they are. Now that CAS is not in there, then they are excluded, they are not state officers,” Murugara said.

He continued, “We have also redefined what their functions are and principally, they are assistants to CSs. They are going to work under the direction of the CSs, to assist them in meetings, to assist them in government portfolio, and any other task assigned to them. We have not, whatsoever provided that they are in between CSs and PSs.”

Minority deputy leader Robert Mbui said by introducing the bill, the Kenya Kwanza was indeed seeking to implement what they opposed vehemently during the 2022 campaigns.

“You know that we were told that this regime will not create offices. This Bill confirms what we have always said, that the intention was always to create offices,” Mbui said.

The Murugara committee had revoked a clause capping the number of CASs, giving the President a free hand to appoint as many as he may wish.

In an addendum to the report tabled in February, the Justice and Legal Affairs Committee deleted the proposal that had capped the number to 22.

The committee, in the report, said capping the number may affect the ability of the Executive to recruit and deploy the personnel required to deliver its programs.

“Committee agreed with views of the Public Service Commission on a role for the Chief Administrative Secretary that accords with the Constitution. In light of the varied roles that may be assigned to a CAS, the committee noted that capping the number may affect the ability of the Executive to recruit and deploy the number required to deliver its programmes,” the report.

“The complement of the Chief Administrative Secretaries shall be as determined as the Public Service Commission. The President shall on the recommendation of PSC appoint Chief Administrative Secretaries observing regional and gender balance,” the report adds.

Murugara, while moving the bill, said that the committee agreed to shelve the idea of capping the CASs as it is an office in the public service which has the power to create offices.

“Eventually after debate, the capping was removed because we did evaluate this office to show it is the public service which has the power to create offices as well as the President. Depending on (the) need, the President can appoint the number of CAS depending on the exigency he is dealing with.”

The committee, however, upheld its earlier amendments that sought to bar the CASs from dealing with matters relating to parliamentary affairs unlike before where the Bill allowed them to be responsible for among other matters, liaising with Parliament and county governments on matters of concurrent mandate.

The CASs will, however, be responsible for matters relating to the portfolio assigned to the office as well as performing 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 Attorney General.

The 50 CAS were sworn in by President Ruto on March 23, last year 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.

Rarieda MP Otiende Amollo, who sits in the JLAC committee, issued a dissenting opinion terming the CAS position a conflict of roles.

The lawmaker argued that public participation preceding the drafting of the Constitution (2010) yielded consensus to abolish the position of Assistant Minister.

“We are seeking to defeat the will of Kenyans as a House. That is unacceptable,” Amollo said adding the move would sabotage gains under the new constitutional order. He challenged proponents to subject the proposal to a national referendum.

“Proposal to introduce an uncapped number of CASs is indeed an affront to the constitution and would occasion additional expense on public finances and pose an unnecessary burden to taxpayers,” Amollo stated.