Court rules CAS jobs illegal, orders fresh vetting of CSs

President Uhuru Kenyatta and Deputy President William Ruto with Cabinet Secretaries at State House, Nairobi. [Courtesy]

The High Court has declared the position of Chief Administrative Officers (CAS) that was initiated in 2018 unconstitutional, dealing a heavy blow to President Uhuru Kenyatta's administration and political structure.

In the ruling made yesterday, Cabinet secretaries who served under Uhuru in his first term were also supposed to be vetted afresh, for a second term in office.

The ruling by High Court Judge Antony Mrima also directed fresh vetting of 10 Cabinet secretaries who were reappointed by the President after his reelection in 2017 without parliamentary interviews.

These CSs include Fred Matiang’i (Interior), James Macharia (Transport), Joe Mucheru (ICT), Eugene Wamalwa (Devolution), Charles Keter (Energy), Raychelle Omamo (Foreign Affairs), Adan Mohamed, (East Africa Community), Sicily Kariuki (Water), Najib Balala (Tourism) and Amina Mohamed (Sports).

The judge directed the Attorney General to give a report in 30 days detailing the position of the CASs and Cabinet secretaries in terms of gender and regional balance.

“The term of the President ends with the term of Cabinet. Those who served between 2013 and 2017 should have been re-vetted to join the Cabinet,” said the judge.

In the verdict, Mrima decreed that the positions were unconstitutional for lack of public participation and inclusion of, among other agencies, the Salaries and Remuneration Commission (SRC). 

The judge agreed with activist Okiya Omtatah that the Constitution does not envisage a scenario where a minister can serve two terms without fresh vetting.

He, however, suspended the judgment until the Covid-19 pandemic flattens, noting that the implication of his judgment would disrupt the functions of the government.

Katiba Institute had gone to court to challenge the legality of the position of CASs. The position first came to effect on January 26, 2018. The President is reported to have sought advice from then Public Service Commission Chair Margaret Kobia, presently CS Public Service and Gender.

Some beneficiaries of the now unconstitutional office are Health CAS Mercy Mwangangi, former Nairobi County Assembly Speaker Beatrice Elachi, David Osiany, Eric Simiyu, Simon Kachapin, Zach Kinuthia, Jackson Musyoka, Japheth Micheni, Zachary Ayieko and Noor Hassan.

Others are former MPs Patrick Ntutu, Rachel Shebesh, Gideon Mung’aro, Alex Mwiru, Linah Chebii, Ken Obura, former governor Hussein Dado and Winnie Guchu.

In 2019, MPs were against Uhuru’s illegal appointments, which split the National Assembly, with some claiming there was an overlap in the roles between the Cabinet Secretaries, Principal Secretaries and CASs.

The matter was raised by Kimilili MP Didmus Barasa after he rejected a response from Health Ministry by CAS Rashid Aman, claiming he was not the right person to respond on the matter.

A number of legislators concurred with Mr Barasa, registering their frustration that it was difficult to question CASs on issues concerning their respective ministries since they could not be held to account for their decisions because their roles were not defined in the Constitution.

Minority leader John Mbadi also faulted creation of the office, which he termed unconstitutional, though it was too late to remedy the situation. He said the President’s move was wrong, but then it presented a challenge on how to address the situation.

“The horse has bolted and I don’t know how we are going to help it,” said Mr Mbadi.