Kenya: Ruto’s run-ins with the courts jeopardise his agenda

Ruto campaigned last year on a promise to strengthen the independence of the judiciary. He may be having second thoughts.

On 3 July, Kenya’s High Court quashed the appointment of 50 chief administrative secretaries (CASs) whom Ruto had selected back in March. The three-judge bench found that the new role, which was created by Ruto and Kenya’s public service commission, was unconstitutional.

The ruling came in response to cases filed by rights activist Eliud Matindi and three institutions, including the Law Society of Kenya.

Ruto now faces a series of court battles over the constitutionality of some of his actions and this could jeopardise large parts of his agenda, from fuel taxes to affordable housing.

Does the president have the patience for a legal tussle? Or will he follow in the footsteps of his predecessor, Uhuru Kenyatta, and challenge the validity of the court itself?

Lingering debate

In September 2022, Kenya’s then-head of public service, Joseph Kinyua, wrote to the Public Service Commission (PSC) proposing to create 23 CAS positions. Each of the 22 ministries was to have one CAS, with an extra one for the ministry of interior and national administration.

After collecting varied opinions from the public, the commission approved the creation of the CAS positions. On 11 October, Kinyua began to recruit for the 23 vacancies. The positions came with some baggage, however.

Back in January 2018, then President Kenyatta had appointed more than a dozen chief administrative secretaries to assist Cabinet members in running their ministries. In February 2021, Kenyatta appointed yet more secretaries, bringing the total to 29.

That April, however, High Court Judge Anthony Mrima found the CAS positions to be unconstitutional on grounds that the public hadn’t been adequately surveyed. Mrima ruled that officials of such a rank could only be appointed through competitive recruitment, with the National Assembly’s approval.

The court decision thwarting the appointment of CASs is itself a profound stride toward sustained constitutional guardianship by the Judiciary

At the time, Kenya was in the thick of the Covid-19 pandemic. As a result, the judge suspended his ruling, offering Kenyatta an opportunity to regularise the appointments. Then-Attorney General Kihara Kariuki went to the Court of Appeal and secured a stay against Mrima’s decision.

Some of the 29 CASs served their full term, leaving office in September 2022, while others left in February 2022 to run for political office.

The Ruto era

After Ruto took office last September, he initially followed Justice Mrima’s directives. The Public Service Commission advertised the openings and interviewed 240 shortlisted applicants in March 2023, before passing on a confidential list of names to the president for him to appoint.

At this point, despite the earlier request and approval of 23 CAS positions, the president notified parliament that he was nominating 50 secretaries, one for every state department. Most of them – 33 – are politicians who lost their race in the 2022 general election.

On 22 March, National Assembly Speaker Moses Wetangula announced that there was no law on the books to guide the vetting of the secretaries. The National Assembly, he said, was “unable to vet the nominees in the absence of an express constitutional or statutory requirement to do so”.

Nevertheless, all 50 secretaries and their families gathered at State House the next day to take their oath of office. That same day, rights activist Matindi was scheduled to submit his petition.

By the time the matter was before the court, Ruto had sworn in all 50 appointees.

We do not think that it was the intention of the framers of the constitution to have 50 CASs deputising 22 cabinet secretaries

“Now that the formation of the government has taken shape, we must work hard, serve the people with diligence as we further the Bottom-Up Economic Transformation Agenda,” Ruto said.

The joy of the 50 was short-lived. On 24 March the High Court ruled that the new officials could not take up any duties nor draw a salary. Three months later, the High Court has now returned a verdict that the CAS position is unconstitutional.

“It is our considered view that the creation of a similar office to the assistant minister … cannot be created in the manner” envisioned by Ruto and the Public Service Commission, the court ruled. “We do not think that it was the intention of the framers of the constitution to have 50 CASs deputising 22 cabinet secretaries.”

Beatrice Elachi, a member of parliament from Nairobi who served as a CAS under President Kenyatta, says Ruto overstepped. “We need the position,” she says. “What the president should have done is to follow through with the 23.”

Elachi says that from her experience, the ministries are too large for cabinet secretaries to coordinate on their own.

Javas Bigambo, a lawyer and consultant at Interthoughts Consulting in Nairobi, says the court was right to stand its ground.

“The court decision thwarting the appointment of CASs is itself a profound stride toward sustained constitutional guardianship by the Judiciary,” he says.

Seeking options

The Kenyan constitution allows the president to appoint between 14 and 22 cabinet secretaries. The president also appoints principal secretaries at his discretion.

In November 2022, Ruto created 51 state departments spread across 21 ministries and the offices of the prime cabinet secretary and the deputy president. Each department has its own principal secretary. Adding 50 CAS positions would have meant 126 officials at the top of the executive branch.

“We may need to ask, when we created 22 ministries, did we look through and realise that [a ministry] is so huge?” Elachi says. “A minister may find they are concentrating on just a few parts” of their ministry.

Kenya’s Attorney General Justin Muturi has filed a motion before the Court of Appeal to protest the high court’s decision. Denis Itumbi, a confidant of the president who had also been appointed as a CAS in the information and communications technology ministry, has also filed a notice of appeal.

Even if the appeals succeed, the legal vacuum identified by the court and parliament persists.

“It is a call to the National Assembly and the Executive to have their sights on priority legislative proposals for whatever agenda there may be,” says Bigambo.

Nairobi-based lawyer Steve Ogolla says the government could simply create positions for the 50 officials elsewhere.

“You can bypass the judgement and make it an office in the public service,” he says. However, he adds, “it is not politically attractive to employ 50 people with staffers and an expenditure budget at such a time”.

More legal trouble

Meanwhile, there are other controversial appointments.

On 27 June, Ruto cleared three advisers and his political party’s secretary General, Cleophas Malala, to attend Cabinet meetings. The three presidential advisers are Monica Juma (national security), Harriette Chiggai (women’s affairs) and David Ndii, who chairs the Council of Presidential Economic Advisers.

Nairobi lawyer Charles Mugane has since gone to court to challenge Ruto’s clearance of the four after they took the oath of secrecy.

In September 2021, High Court Judge Anthony Mrima ruled that the then-director general of the Nairobi Metropolitan Services, Mohamed Badi, could not sit in Cabinet. Mrima termed Badi a “stranger in the Cabinet” on account that the constitution spells out who can sit in on its proceedings.

Article 152 of the Kenyan constitution limits the Cabinet to just 25 people: The president, deputy president, attorney general and anywhere from 14 to 22 Cabinet secretaries. The only other person allowed in the inner sanctum is the secretary to the Cabinet, whose role is to keep records of meetings and communicate Cabinet decisions “to the appropriate authorities”.

In the Badi case, Justice Mrima found that taking the oath of secrecy made Badi “a member of the cabinet”.

Ignored counsel

The president of the Law Society of Kenya, Eric Theuri, says Ruto ignored the advice of Attorney General Justin Muturi in the CAS matter.

“The AG in December gave an advisory against this move,” Theuri says. “It is the question of a government being given advice but refusing to heed the advice for political consideration.”

When you act contrary to decisions that have already been made by the court, there is a message you are sending out, that this is a renegade government

Theuri tells The Africa Report that Ruto’s government should have sought to clarify the Mrima decision if there was any doubt.

“When you act contrary to decisions that have already been made by the court, there is a message you are sending out, that this is a renegade government,” Theuri says. “Political considerations have been put at a higher level than legal considerations.”

Muturi has since been asked to respond to the Mugane petition in court.

Bobby Mkangi, a Nairobi lawyer who was part of the team that formulated the 2010 constitution, fears the president risks widening the size of the top executive organ. Kenyans “really wanted a limited and constrained Cabinet”, he says, and the cap on 25 Cabinet members “gives valid justification that no other person should attend those meetings”.

Bigambo says the Ruto administration should have publicly explained why it was necessary for non-members to attend the Cabinet.

Lawyer Ogolla, for his part, says Cabinet attendance is tightly controlled. “You may bring experts to advise Cabinet before taking a decision,” he says, but Ruto’s additions suggest a larger role. “Their being sworn [to the oath of secrecy] seems they are to sit in Cabinet permanently, which the constitution does not anticipate.”

Mkangi questions their value. “What extra value do they bring to these meetings?” he says. “For the extra people who have not taken a similar oath as Cabinet secretaries but now sit to make decisions, could this compromise the decision-making processes and the decisions that come from Cabinet?”

Legal jeopardy?

A source in the Attorney General’s office tells The Africa Report that there was concern about what would happen to decisions taken in the presence of the four “strangers” if the court eventually agrees that they shouldn’t be there.

“The court can invalidate decisions taken in the presence of persons not allowed by the constitution to sit in Cabinet,” the source says.

In the months between April and June, Ruto spent most of his time in public championing his first tax bill. The legislation was set to take effect on 1 July, but has since been challenged in court.

On 30 July, High Court Judge Mugure Thande suspended the law and ordered the government to stop implementing any new taxes. The suspension was extended on 10 July and Chief Justice Martha Koome has since constituted a three-judge bench to hear the case, which is backed by the opposition.

However, the Energy and Petroleum Regulatory Authority (EPRA) has already gone ahead with new fuel prices triggered by the tax law’s revision on VAT rates on fuel from 8% to 16%. Since 1 July, a litre of petrol retails at KSh195 in Nairobi ($1.39) up from KSh182 ($1.29).

As a result, Busia Senator Okiya Omtata has filed a contempt case against the agency. EPRA officials “deserve to go to jail”, lawyer Ogolla says “There is a [court] order, they need to comply.”

Ruto is counting on the new tax law to raise more than KSh311bn ($2.2bn) to push tax revenue beyond KSh2.5Trn ($18bn) by June 2024. This is meant to finance his KSh3.67Trn ($26bn) budget.

The court suspension also delays Ruto’s collection of a controversial housing levy to finance the government’s ambitious plan to build at least 250,000 affordable houses every year. Back in 2018, the High Court quashed a similar housing levy, dooming President Kenyatta’s affordable housing programme.

Will the same fate now befall Ruto?