Legal clash

Kenya: Opposition lauds court ruling Ruto’s new appointments unconstitutional

By Victor Abuso

Posted on July 6, 2023 11:19

 © President William Ruto speaks during Jamhuri Day celebrations at Nyayo Stadium in Nairobi. John Ochieng / OPA Images
President William Ruto speaks during Jamhuri Day celebrations at Nyayo Stadium in Nairobi. John Ochieng / OPA Images

The High Court in Nairobi has dismissed President William Ruto’s appointment of 50 chief administrative secretaries and assistant ministers, calling the decision unconstitutional in a ruling that was commended by the opposition.

The ruling was returned by judges Kanyi Kimondo, Hedwig Ong’udi and Aleem Visram, stressing that Ruto did not fully abide by the constitutional requirement of public participation.

“The appointing authority did not comply. The entire complement of 50 CASs is therefore unconstitutional,” the court ruled.

The court found that there was reasonable public participation for the appointment of only 23 positions and not for the other 27 posts, which have been newly created by Ruto after he came to power last year.

“It was not the intention of the framers of the constitution to have 50 CASs deputising 22 cabinet secretaries,” the ruling found.

Article 152 of the Kenya Constitution stipulates that the president is allowed to appoint no fewer than 14 and no more than 22 cabinet secretaries, without defining the roles of the deputies.

The parliament had earlier rejected to vet Ruto’s nominees. “The National Assembly is unable to vet the nominees in the absence of an express constitutional or statutory requirement to do so,” said speaker Moses Wetangula.

Earlier this year, the Law Society of Kenya (LSK) and Katiba Institute, a local NGO that promotes constitutional order, filed a petition challenging Ruto’s appointing process.

Welcoming the ruling, Eric Theuri, president of the lawyers’ body, says LSK expects the ruling to be appealed by the government. “We are expecting an appeal to challenge the constitutionality of the created positions,” he says.

Ruto’s ally Senator Samson Cherargei has vowed to appeal the High Court’s ruling, describing the judiciary as “rogue”. He tweeted: “We shall appeal this decision that negates public interest and principles of Natural justice.”

More human resources, higher bill

After assuming office, Ruto said he needed more human resources to deliver on his promises.

“I need more brains and more workers,” he said, adding that his deputy, Rigathi Gachagua, almost sleeps in the office due to the immense workload.

Political analyst and lecturer Brian Wanyama tells The Africa Report the president must appeal the decision to a higher court to keep his allies in the government. “Ruto will fight hard to keep that position, he has political debts to pay,” he says.

To avoid further embarrassment, in case the higher court stands by the decision of the lower court, Wanyama suggests that Ruto has to come up with a long-term plan. “He must propose an amendment to make the positions constitutional”.

Opposition leader Raila Odinga has heaped praise on the court’s decision, saying the move was timely because it would help lower the wage bill under Ruto’s administration.

Among Ruto’s appointees were Raila’s former political confidants, which observers believe is laying ground for a political raid in the opposition’s backyard ahead of the 2027 polls. They include former governor Evans Kidero, former MP Nicholas Gumbo, and former senator Fred Outa.

Raila, who ran for president against Ruto last year, has called for Kenyans to turn up for yet another demonstration on Friday 7 July to express their dissatisfaction with the president’s leadership, under which Kenya’s cost of living has become unaffordable.

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