Legal dilemma on suitability of recycled Cabinet members

Civil Society Organizations in Kenya led by Kenya Human Rights Commission Board member Wanjiku Gikonyo(left), Inuka-Kenya ni Sisi! Kawive Wambua (centre) and Transparency International-Kenya Executive Director Sheila Masinde(right) address the media at Ufungamano House in Nairobi on July 20, 2024 where they differed with the new Cabinet Secretaries appointment warning to move to court to challenge the appointments claiming it's a breach of Constitution. [Boniface Okendo, Standard]

President William Ruto’s decision to re-nominate six of the 21 Cabinet Secretaries he fired on July 11 has raised a national debate on the legality of the action and suitability to serve in the Cabinet and any other public office in the country.

The debacle has divided legal minds and civil society organizations with some equating their sacking from a dismissed Cabinet with impeachment while other legal minds contend

The CSs, Kithure Kindiki (Interior) Alice Wahome (Lands) Soipan Tuya (Environment and Climate Change) and Aden Duale (Defense), Rebecca Miano who served at Trade has been nominated to serve as Attorney General while Davis Chirchir (formerly Energy) has been nominated to serve in the Road and Transport Ministry. 

On Saturday, civil lobby groups, Kenya Human Rights Commission (KHRC), Inuka Kenya, Transparency International and Institute for Social Accountability (TISA) opposed the nomination of the six maintaining that they were sacked as a result of their incompetence raising concerns on their suitability.

“Six of the 11 nominees served in the previous cabinet that was dissolved by the president following overwhelming feedback from Kenyans regarding the responsiveness of government in the performance of its functions and primarily because of their failure to enhance efficiency, effectiveness, transparency, and accountability in public service delivery.,” Kawive Wambua of the Inuka Kenya said.

The civil rights groups contended that the firing of the six by the president was an admission that his government had failed and their dismissal was an indictment of former cabinet secretaries.

They said the reappointment was ‘unconstitutional insofar as they did not meet the requirements of chapter six of the constitution of Kenya.’

“It is also an affront to the call by the people of Kenya for accountability to be seen to be done and actually being done,” the rights lobby groups said in a statement.

Wanjiku Gikonyo, Board Member for the KHRC,  said the Cabinet appointments, a game of musical chairs raises concerns why the six ‘who had been set aside on accountability and performance grounds are back in the cabinet’.

“It looks like the president may have been buying time to allow pressure of the moment to ease. With regard to the others who've been appointed, we are going to scrutinize their credentials individually, but we would have expected the president to say this is the criteria that he'll be using from now on, including track record, accountability, and the fact that somebody is aligned to their docket,” she said.

She pushed for picking of the Cabinet nominees based on accountability and respect to chapter six concerns.

“He (President) is instead taking the country on some showbiz of appointing people in staggered terms without saying, are they going to go through an audit? So the six who are serving before, could they go through a lifestyle audit first? Could they go through proper scrutiny? Because we do not trust parliament,” Gikonyo added.

The human rights crusaders maintained they had no trust in parliament claiming it had been pocketed by the president. They claimed even after naming the proposed Cabinet, the country was still at the point where its youthful population will go back to the streets.

“And by doing what he did, the President says it doesn't matter, that those deaths don't matter. If they are to matter, he needs to step back, get the audit done of those who are being appointed into office" said Gikonyo.

The debate on whether members of the dissolved Cabinet are suitable to serve in the new cabinet was started by lawyers Nelson Havi and Ahmednasir Abdullahi on social media arguing that the dismissal of CSs and the former Attorney General Justin Muturi made them “ineligible to hold any public office forever: appointive or elective'.

“They are in the same category as impeached governors or judges found unsuitable to serve. That is the law,” argued Havi, reacting to a gazette notice announcing the dismissal of the CSs and appointment of Prime Cabinet Secretary Musalia Mudavadi to act in all the vacancies.

“The operating word is ‘dismiss’,” Havi added, justifying his reasoning with the fact that there is a court petition challenging Muturi’s dismissal. “Do you think those behind it are fools? They are not! It is because the dismissal has the terminal effect,” said Havi.

 On his part lawyer, Abdullahi said Ruto’s dismissal of the CSs under the Constitution “implied a grave omission or commission”

 “In dismissing his cabinet, President William Ruto was satisfied that their conduct (and) performance in office of their omissions rose to a constitutional level that warranted their dismissal... that grave omission or commission hasn’t been erased or addressed in the past week and can’t be addressed in the future,” posted Abdullahi.

 But in a rebuttal, former Public Service Cabinet Secretary Moses Kuria disputed the lawyers' opinions, arguing that their submissions were ill-informed since a dismissal on grounds of impeachment would warrant disciplinary action for the CSs and not a class action.

"As lawyers of (dis)repute, you need to read whatever provisions against the tenets of fair administrative action. If your 'scholarly' arguments are to hold water, the affected persons then have to be taken through a disciplinary process or a court martial. Not a class action," wrote Kuria.

He added, "Otherwise, if you are dismissed as a clerk at Safaricom, you don't even qualify for a certificate of good conduct. This McCarthyism by you Pharisees MUST STOP."

In a phone interview with the Sunday Standard former Law Society of Kenya (LSK) Eric Theuri said the constitutionality of re appointment of the six former Cabinet Secretaries was debatable since the process and disqualification on impeachment and dissolving of the Cabinet ‘stood on the completely legal grounds. 

“By nominating the first batch of his Cabinet, the President performed his constitutional duty but the scenarios under which the Cabinet was dissolved was because of lack of confidence, the question of their illegitimacy can only be answered during the vetting process,” Theuri said.

He, however noted that the six will also have to be vetted afresh since, by the time of the Cabinet dissolution, they immediately became ordinary Kenyans.