State vows to challenge ruling on legality of Cabinet positions

Rawlings Otieno

The government has vowed to appeal High Court ruling that declared office of the Chief Administrative Secretaries (CASs) unconstitutional.

High Court judge Anthony Mrima on Tuesday also ruled that Cabinet Secretaries and Permanent Secretaries who were reappointed in President Uhuru Kenyatta’s second-term are also in office illegally, because they were not subjected to fresh vetting.

Solicitor General Kennedy Ogeto yesterday told People Daily that the State Law Office will appeal the decision, citing the ruling as erroneous. “We are immediately appealing the decision.

We feel that the decision is grossly erroneous and based on a fundamental misapprehension of the law,” said Ogeto. 

On Tuesday, Mrima declared office of the CAS unconstitutional, as the law was not followed in creating the positions.

Speaking during a TV interview on Tuesday night, Jubilee Secretary General Raphael Tuju said as Government they have accepted and respect the ruling.

However, he charged that there are courts of law, which act independently, citing a possibility of going to court.

“The effect of the ruling can only take place after May 29 after the Covid-19 restrictions are lifted. 

We do have the possibility to go to the Court of Appeal as Government,” said Tuju. 

Tuju argued that article 132 of the Constitution makes provision for the President, in consultation with the Public Service Commission, to create any position in the public service or in Government.

“If the court was not aware of this or if it ignored, we have the appellate process where that particular argument will be advanced. There is no cause for alarm. It has no effect until after May 29,” said Tuju.

Article 132 (4) (a) states that the President may perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the PSC. 

Human rights activist Okiya Omtata had gone to court to challenge President Uhuru Kenyatta’s appointment of the CASs his administration created immediately after the 2017 polls. 

Omtata, in his petition, told the court that a PS can only be appointed into office upon such a person being shortlisted, interviewed, recommended for nomination by the PSC to the President and on approval by the National Assembly succeeded.

Contrary appointment

He had argued that any contrary appointment contravenes Articles 10, 27, 41(1), 47 and 155 of the Constitution as well as Sections 3 and 7 of the Public Appointments (Parliamentary Approval) Act and Section 27 of the PSC Act.

“Any serving PS, who was not either shortlisted, interviewed, recommended for nomination by the Public Service Commission to the President or approved by the National Assembly is in office in contravention of the Constitution and the law,” Justice Mrima’s ruling.

Omtata had further claimed that a CS who served in the first term of the President (which President is re-elected for a second term) must be approved by the National Assembly so as to continue serving.

According to Mrima, such claims contravenes Article 132(2) of the Constitution and sections 3 and 7 of the Public Appointments (Parliamentary Approval) Act.

“Any CS who continues to serve as a Cabinet Secretary 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,” Mrima ruled.

Justice Mrima held that the re-assignment of a CS or a PS by a sitting President is neither unconstitutional nor contrary to law. 

“This court finds that a CS who serves in the first term of the President (which President is re-elected for a second term) must be approved by the National Assembly so as to continue to serve as a CS in the second term of the President.

Any derogation thereof infringes Article 132(2) of the Constitution and Section 3 of the Parliamentary Approval Act.

The court further finds that, unlike the CS, the tenure of office of a PS is not tied to the term of office of the President who appoints the PS,” Mrima ruled.

Claim that the processes towards the establishment of the office of the CAS were in contravention of Articles 10, 47, 132(4)(a), 201(a), 232(1) and 234(2)(c) of the Constitution as well as Sections 27 and 30 of the PSC Act succeeded.