President must constitute new Cabinet immediately, experts say

President William Ruto. [PCS] On Thursday, President William Ruto dissolved his Cabinet. Following weeks of protests against his administration, the President grabbed the accountability bull by the horns and sacked all his Cabinet Secretaries, save for one, Prime Cabinet Secretary and Foreign Affairs CS Musalia Mudavadi. In a 12-minute speech, the President premised his decision on the current political realities; the "need" for a broad-based government and unprecedented revolt by the public. "Upon reflection, listening keenly to what the people of Kenya have said and after a holistic appraisal of the performance of my Cabinet and its achievements and challenges, I have decided to dismiss with immediate effect all the Cabinet Secretaries and the Attorney-General from the Cabinet of the Republic of Kenya except the Prime Cabinet Secretary and Cabinet Secretary for Foreign and Diaspora Affairs," Ruto said. But by the dint of this move, Ruto threw the country into murky waters of uncertainty on what comes next. Kenyans are now left in the dark on how long it will take the besieged President to reconstitute his Cabinet. Some have likened the President's decision not to give timelines on when he would appoint his new Cabinet to him kicking a can down a narrow road to allow him conclude on the impending 'coalition government' talks with the opposition. So what comes next? A check by The Saturday Standard reveals that the 2010 Constitution does not explicitly provide for a time frame during which the Head of State is expected to form a new Cabinet following a dissolution. This, as constitutional expert Bobby Mkangi says, is because the law dictates that at all times, there should be a fully constituted Cabinet for the efficient functioning of the Executive. "The constitution is not silent on the dissolution of Cabinet. It provides that there must be a Cabinet at all times. There's never supposed to be a lacuna. By moving to dissolve the Cabinet, Ruto ought to have ensured that he retained the requisite and minimum 14 Cabinet secretaries to ensure continuity of government and that the country remains within the constitutional framework," says Mkangi. According to section 152 of the Constitution, a Cabinet should be comprised of not fewer than 14 and not more than 22 Cabinet Secretaries. Mkangi observes that the country now finds itself in the throes of a crisis where the President has subverted the constitutional order of government. Structurally, the Executive is not fully constituted. "The President is now expected to reconstitute the Cabinet as soon as possible. We now find ourselves in strange waters and Ruto should show fidelity to the Constitution by speeding up the process. He should at least ensure that he appoints the minimum number of 14 CSs and can fill the rest of the positions as he pleases," says Mkangi. He adds: "What has been happening in previous governments is that even when a President is vacating office, Cabinet secretaries remain to allow for the transition and setting up of a new Cabinet. He (Ruto) should have been guided by this." Another lawyer Danstan Omari holds that there is no law providing for the duration which the President should nominate his Cabinet. But once the names are presented before Parliament, the law now applies. "As it is, there is no government and this means that no policy document can be approved without Cabinet and this should put pressure on Ruto to immediately constitute his Cabinet. This makes it very urgent that he must appoint his ministers," he states. According to the Parliamentary Standing Orders, once the President has nominated his Cabinet, the names are transmitted to the National Assembly for consideration. The Speaker is then expected to commit the names to the Committee of Appointments which will within 14 to 28 days assess the suitability of the nominees to hold office. The decision of the House team is then transmitted to the House through a report and if the MPs give the nod, the President is expected to formally appoint the CSs. Ruto is also at liberty to re-nominate the immediate former members of his Cabinet. Omari is, however, of the opinion that going by the public mood, the President should not re-appoint any of the 21 Cabinet Secretaries that he sacked. He argues that they were dismissed because the public no longer has confidence in them and re-hiring them would be a slap in the face of Kenyans. Sabatia MP Clement Sloya, however, differs with the lawyer and wants President Ruto to consider the re-appointing of former Cabinet Secretaries Kithure Kindiki (Interior) and Aden Duale (Defence). "It is not in doubt that Ruto's decision to axe his Cabinet was for the good of the country. However, we lost hard-working CSs like Kindiki and Duale. I now implore the President to consider youthful professionals for the vacant Cabinet positions," he said. Meanwhile, Omari explained some of the implications of the President's decision to fire the Cabinet Secretaries. They include the former CSs having to walk away without terminal dues after serving in government for 20 months. "According to section 44 of the Employment Act, they lose everything because they never resigned but were dismissed. There are those that had taken loans and mortgages on the strength of their benefits and salaries but banks will now have to recall those loans and mortgages. Others will have to be auctioned and surcharged because they no longer enjoy the said benefits," added the lawyer.

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