How courts have tamed Ruto's appetite for illegal task forces

Members of the commission of inquiry into Shakahola tragedy after their swearing in at the Milimani Law Courts, on May 9, 2023. The commission was declared unlawful. [File, Standard]

President William Ruto’s move to establish a multi-agency team to fight corruption could be another failed attempt to usurp the powers of independent institutions.

Announced on Monday, the 11-member team comprises key state actors, including the Ethics and Anti-Corruption Commission (EACC), the Directorate of Criminal Investigations (DCI), the Office of the Director of Public Prosecutions (ODPP), the National Intelligence Service (NIS), and the Asset Recovery Agency (ARA).

According to the President, the objective is to coordinate and fast-track investigations and prosecutions related to graft, economic crimes, and asset recovery.

“A multi-agency team on war against corruption is hereby established with the strategic objective of creating synergy and inter-agency cooperation in the fight against corruption, economic crimes, and related offences,” said President Ruto during the announcement.

However, the task force is already facing legal hurdles.

Four petitioners have gone to court challenging the legality of the team. The High Court on Wednesday issued interim orders suspending the team’s operations. (See story on opposite page)

Since assuming office in September, 2022, Ruto has increasingly leaned on presidential task forces, commissions, and advisory teams to push his agenda, often bypassing or duplicating the constitutional mandates of independent commissions and established ministries.

This is not the first time Ruto’s administration has formed a high-powered panel to address systemic issues, only to run afoul of the law.

The High Court has declared at least seven of these efforts unconstitutional, citing reasons ranging from lack of public participation to outright usurpation of roles legally assigned to constitutional bodies.

In April, the High Court struck down the Police Reforms Task Force, chaired by retired Chief Justice David Maraga, which had been formed by President Ruto in 2023 to review the welfare of police officers.

Justice Lawrence Mugambi ruled that the President’s move violated the Constitution. The judge found that the President had no mandate to establish a task force as his decision had overstepped the role of the National Police Service Commission (NPSC).

The judge also ruled that, since the task force is unconstitutional, any decisions or actions made by it would be invalid.

This followed a lawsuit filed by Dr Magare Gikenyi, who argued that the President usurped the role of the NSPC.

Public participation

Similarly, the presidential task force on addressing human resources for health, which was established in July last year, was quashed for failing to meet legal requirements for public participation and for contradicting existing statutory frameworks.

In February, Justice Bahati Mwamuye of the High Court ruled the task force’s formation as unconstitutional, citing its overlap with the Kenya Health Human Resource Advisory Council.

The case had been filed by the Law Society of Kenya and other civil society groups, who argued that the task force was usurping the mandate of the statutory body created under the Health Act of 2017.

They also criticised the government for not operationalising the council as required by law.

In a landmark judgment on the Shakahola Commission of Inquiry in July last year, Justice Lawrence Mugambi ruled that President Ruto had unlawfully intruded into the judicial mandate by establishing a parallel investigation mechanism into a matter already under judicial purview.

This ruling followed a petition by the Azimio la Umoja that challenged the move, citing Section 3 of the Commission of Inquiry Act of 1962.

Additionally, the judge confirmed that the president cannot use general powers conferred to him by the Act to displace specific powers of independent bodies and offices.

Procedurally flawed

Further, the High Court has declared President Ruto’s nomination of four individuals to the National Climate Change Council unconstitutional, illegal, and procedurally flawed.

Delivering the judgment on Friday, Justice Lawrence Mugambi found that the appointments of Emily Mwende Waita, John Kioli, Umar Omar, and Dr George Outa violated the Constitution due to a lack of public participation and failure to include marginalised communities.

The courts have also halted the establishment of the presidential task force for the forensic audit of the country’s public debt.

Justice Mugambi issued the interim orders following a petition by Dr Gikenyi and activist Eliud Matindi, who argue that auditing public debt is a constitutionally mandated function of the Office of the Auditor General.

Dr Gikenyi, who is back to court challenging the formation of the multi-agency task force on corruption, on Wednesday stated the court decisions underscored the principle that even well-intentioned Executive actions must respect the separation of powers.

“What’s consistent across these rulings is the court’s insistence that public participation and institutional independence are not optional,” Magare said.