Kenya: Constitutional Court Orders Executive to Regularize Retention of 10 CSs Post-2017

President Uhuru Kenyatta addressing the nation (file photo).

Nairobi — The Constitutional Court on Tuesday ordered the National Executive to regularize the continued service of ten Cabinet Secretaries in President Uhuru Kenyatta's second term Cabinet after the court held the appointees ought to have been vetted afresh.

The mandate of the Cabinet Secretaries appointed in 2013 was deemed to have lapsed at the end of President Kenyatta's firm term in 2017, the court agreeing with activist Okiya Omtatah, the petitioner, who argued the ministers should have been vetted for second term appointments.

"The claim that a Cabinet Secretary who serves in the first term of the President (which President is reelected for a second term) must be approved by the National Assembly so as to continue to serve as a Cabinet Secretary in the second term of the President succeeded. Such contravenes Article 132(2) of the Constitution and Sections 3 and 7 of the Public Appointments (Parliamentary Approval) Act," Justice Antony Mrima ruled.

"As such, any Cabinet Secretary who served during the first Judgment - Nairobi High Court Constitutional Petition Nos. 33 & 42 of 2018 Page 96 of 98 term of H.E. President Kenyatta and 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," the judge outlined.

Cabinet Secretaries affected by the court's ruling are: Interior's Fred Matinagi, Raychelle Omamo (Foreign Affairs), James Macharia (Transport), Najib Balala (Tourism), Joe Mucheru (ICT & Youth), Adan Mohamed (EAC & Regional Development), Sicily Kariuki (Water, Sanitation & Irrigation), Charles Keter (Energy), Amina Mohamed (Sports, Heritage & Culture) and Eugene Wamalwa (Devolution and ASALs).

Henry Rotich (Treasury) and Mwangi Kiunjuri (Agriculture), dismissed by President Kenyatta in 2019 and 2020 respectively, were also among Cabinet Secretary whose continued service after the 2017 elections was deemed unconstitutional.

Justice Mrima also declared the Chief Administrate Secretary positions created in January 2018 unconstitutional, requiring the Executive to institute measures to regularize persons appointed to such positions.

"The claim that the processes towards the establishment of the Office of the Chief Administrative Secretary 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," he ruled.

The court also upheld an argument by Omtatah that Principle Secretaries can only be appointed by the President after having been shortlisted, interviewed and recommended for appointment by the Public Service Commission (PSC).

"Therefore, any serving Principal Secretary who was not either shortlisted, interviewed, recommended for nomination by the Public Service Commission to H.E The President or approved by the National Assembly is in office in contravention of the Constitution and the law."

Justice Mrima however stayed the enforcement of the orders declaring the current office holders in respect to unvetted Cabinet Secretaries and newly appointed Chief Administrative Secretaries until the coronavirus pandemic is contained or at a date to be determined the court in future.

In the meantime, the court ordered the Attorney General to file an affidavit within thirty days listing members of the Cabinet as of January 2018, current Cabinet Secretaries and Principal Secretaries as well as their ethnic backgrounds and gender, the time and nature of their appointments and any known disability any appointee may have.

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