High Court ruling ruins presidential appointments

President Uhuru Kenyatta presides over the official opening of the ultra-modern Neema abattoir at Lucky Summer, Nairobi County. [Courtesy]

The High Court has invalidated the arbitrary appointment of 128 Kenyans to parastatal boards, public service Cabinet Secretary Prof Margaret Kobia made a singular appointment to the board of Women Enterprise Fund.

Bashir Golich Sola became the first person to be appointed post the Friday judgment which completely turned the tables on the old order of unilateral appointments. The appointment which also revoked the prior appointment of Tendai Mtana was, however, dated May 54th, twenty-three days prior to the judgement.

Sola's appointment may as well have crowned end of an era if President Uhuru Kenyatta and his CS's decide to obey the court order and begin to competitively appoint board chiefs.

"The invalidity of the boards and any of their decisions start at the time of the ruling by the judges meaning that after today, the boards should vacate office and the president begins a competitive process of filling the positions, otherwise any business transacted after that is null," Law Society of Kenya (LSK) President Nelson Havi says.

Coming at the homestretch of President Kenyatta's rule, the decision was interpreted as yet another bombshell in the sustaining shelling of executive from an emboldened judiciary. 

Stripped off his powers to reward allies, like his predecessors did throughout and especially towards the end of their terms, the decision leaves the president a little weaker. It also exposes those who agree to take up the appointments against the court order in danger of litigation.

"There was no demonstration that the requirements on gender, ethnicity and persons with disabilities were complied with,” observed the judges.

The litigants, Katiba Institute, had argued that the recruitment was based on patronage. It is this criterion that has possibly allowed presidents to flood government positions with their cronies.

For long, loyalty to the ruling regime seemed the fastest route into government, which is never in short supply of vacancies.

While appointments to the more lucrative roles – such as cabinet and ambassadorial positions – attract parliamentary scrutiny, others have, seemingly, been made unilaterally and, at times, spontaneously.

The court found that the president and the line cabinet secretaries (CSs) had made the appointments in violation of Articles 10 and 232 of the constitution by failing to subject the recruitment to a competitive process.

“Considering the Respondents’ arguments, it is clear to us that there was neither advertisement for vacancies nor were the interested parties subjected to interviews before being appointed. Without advertisement and subjecting the interested Parties to interviews, it cannot be said that the requirements of competition and merit were complied with,” ruled a three-judge bench of the High Court.

"Many appointees find their way into plum jobs whenever a new government comes into place. Some are sacked by a new regime “to create room for other people to share the spoils in government,” argues Amukoa Anangwe, a former lecturer of political science at the University of Dodoma.

But not all loyalists are rewarded instantly. The patient ones reap big in the sunset days of a respective regime. Appointees living on borrowed time also get reappointed during such times.

Prof Anangwe contends that such a move would safeguard the interests of the president beyond their term.

“No one in power wants their influence to end abruptly because their tenure has ended. There is always an element of residual loyalty by such office holders to their former bosses,” he argues.

In 2014, self-styled Gor Mahia ‘number one fan’, Jaro Soja, landed a job as a member of the Sports Stadia Management Board after a brief encounter with President Uhuru Kenyatta at State House. Comedian Vincent Muasya aka Chipukeezy, is among the victims of this judgment.

But he is not the only one lucky. The 128 parastatal heads have been beneficiaries of similar appointments. They include former chief of staff, retired generals, former lawmakers and top former government officials.

On Thursday, Judges Jessie Lesiit, Chacha Mwita and Lucy Njuguna found that Kenyans in the 2010 Constitution wanted those qualified to be appointed to public offices done transparently.