Muturi: High Court's ruling on advisory offices matters, provides clarity

Former Attorney General Justin Muturi in a past interview with The Standard. [File, Standard]

The High Court ruling on President William Ruto’s advisory offices restores institutional dignity, which has been steadily eroded in recent years, former Attorney General Justin Muturi has said.

Muturi said on Friday that although the High Court has now switched the lights back on, there is concern whether the political class will listen and implement.

He said courts can declare, quash, and halt but constitutionalism ultimately survives not on judgments alone but on restraint on leaders choosing to govern within limits even when they have the power to test them.

In the significant judgment, he said the High Court declared unconstitutional the creation of advisory offices and appointment of 21 individuals to those positions by the Executive.

“The court did not hedge its words. The appointments were null and void ab initio, invalid from the very beginning, as though they had never existed. In legal terms, this is not a reprimand. It is an erasure. This ruling offers Kenya a moment of clarity. Power may be creative, but the Constitution is definitive and, in a republic, governed by law, shadows have no legal standing,” said Muturi in a statement.

Muturi said that at the heart of the ruling lies a simple but profound constitutional truth that public power must operate within defined structures, not alongside them.

He said the court found that the process of creating and staffing these advisory offices bypassed the Public Service Commission (PSC), the institution constitutionally mandated to oversee public appointments.

In doing so, the Executive violated not only procedure but principle, undermining transparency, meritocracy, fiscal responsibility, and public participation.

According to Muturi, this was not merely about jobs but architecture of the state, yet the Constitution is built on a careful separation of roles, with independent offices acting as guardrails against the concentration of power.

He said the PSC exists precisely to prevent personalised hiring sprees disguised as governance and when advisory offices are created outside this framework, staffed through opaque processes, and funded by the public purse, they amount to a “parallel public service”, unaccountable, unregulated and unconstitutional.

“The PSC is not decorative. It is not optional. Neither are other independent offices created to insulate governance from patronage and excess. When the Executive builds shadows beside these institutions, democracy itself is dimmed. Power, when unchecked, has a peculiar habit: it grows extra limbs, not through constitutional amendment or public consent, but through quiet administrative invention,” he said.

He noted that it has been new offices, advisors and titles, all justified in the language of “efficiency” and “expertise,” yet existing entirely in the shadows of established institutions.

It is against this ancient temptation of power to duplicate itself that the High Court of Kenya has now spoken, firmly, clearly, and with constitutional finality, the former Public Service Cabinet Secretary added.

“The court saw this danger clearly. By quashing all administrative decisions connected to these offices since their creation in 2022, and by ordering an immediate halt to salary payments, the judgment sent a decisive message that illegality does not ripen with time. An unconstitutional act does not become lawful simply because it has been normalized,” he explained.

According to him, the ruling did not emerge in isolation but follows a consistent judicial trajectory in last and previous year where Kenyan courts repeatedly barred the Executive from creating parallel structures that usurp the mandates of independent bodies, including the PSC and the Office of the Auditor General.

Taken together, he said, these decisions reflect a judiciary increasingly alert to what might be called constitutional erosion by administrative creep.

“What this 2026 ruling decisively rejects is the conversion of 'advice' into an alternative bureaucracy. The petition correctly framed the issue not as hostility to expertise but as fidelity to constitutional order. The work performed by these advisors, the court agreed, could and should, have been handled by mainstream public servants recruited through lawful processes,” he explained.

To do otherwise was to create an elite administrative layer answerable to individuals rather than institutions.

Muturi has also explained that the judgment speaks beyond the specifics of 21 appointments and is a rebuke to a political culture that treats the State as a private estate to be reorganised at will.

Similarly, he said it is a reminder that the Constitution is not an inconvenience to be engineered around, but a covenant to be honoured.

“Supporters of expansive advisory offices often argue that modern governance requires flexibility, that presidents and governors need trusted experts operating close to power. That argument is not without surface appeal. Indeed, Justice Lawrence Mugambi’s 2025 rulings acknowledged that advisors could, on occasion, attend Cabinet meetings to offer technical input,” he noted.

He, however, said the line the court has now drawn is crucial that occasional advice is not the same as permanent offices, technical input is not the same as employment and proximity to power is not the same as constitutional authority.

“There is also a moral dimension here that Kenyans must not ignore. At a time of crushing public debt, austerity budgets, and widespread unemployment, the creation of well-paid advisory positions outside constitutional channels offends not only the law but public conscience. Fiscal responsibility is not an abstract value. It is about choices, who is paid, who is bypassed, and who bears the cost,” he insisted.