Recently, President William Ruto allowed four of his advisors to sit in the Cabinet. This has been construed by a section of Kenyans as a violation of the country's Constitution which specifies what a Cabinet comprises. Article 152 of the supreme law states that, "the Cabinet consists of the President, the Deputy President, the Attorney General and not fewer than 14 and not more than 22 Cabinet Secretaries." By allowing his advisors to sit in some Cabinet meetings, has the president really violated the Constitution?
What his detractors fail to understand is that these advisors are not CSs. They have not been vetted by Parliament nor have they taken the CSs oath of office. They do not draw salaries from the government as CSs. The four are simply ex officio members co-opted for specific purposes or discussions.
Ex officio is a Latin term that literally means "from the office" or by virtue of another office." The president's four advisers therefore sit in some Cabinet sessions not as CSs but by virtue of the advisory offices that they hold. Cleophas Malala is the UDA Secretary General. Because it is the ruling party, he advises the president on conformity to the party manifesto. David Ndii is the chair of the Council of Economic Advisors. He is tasked with guiding the government on resuscitating the country's tanking economy.
Monica Juma is the National Security advisor. The government has recently brought peace to the restive North Rift after years of internecine strife. However, sections of arid North and coastal regions still face existential threats from terror groups like the Al Shabaab. Harriet Chiggai is a Women Rights advisor, according to a statement from State House, "in line with getting women issues at the centre of President Ruto's administration."
There are many instances where ex officio participants are included in Cabinet matters. An example is the Head of Public Service who occasionally sits in meetings. Or those who offer secretarial services in such meetings. Nor is this practice limited to the Cabinet. It has been standard practice for boards of corporations to co-opt non-board members into their deliberations for the expertise they bring. A procurement or IT specialist may be asked to give insights that guide the decisional processes of such boards.
In Parliament, the Senate comprises 47 elected members and 20 nominated ones. The nominated members are ex officio in the sense that they represent special interest groups. When it comes to impeachment proceedings, nominated senators have no vote. Similarly, the president's advisors may only sit in some Cabinet proceedings for specific advisory purposes. They do not make decisions.
Justice Anthony Mrima's ruling on the Cabinet has been quoted extensively. This column takes the view that Justice Mrima interpreted the law restrictively in the matter of General Badi's inclusion in Cabinet. This was probably to forestall a situation where a sitting military officer advises on matters to do with his senior, the Chief of Defence Forces. Whilst there is no doubt that Justice Mrima left no room for discretion on the composition of the Cabinet, it did not forbid the inclusion of ex officio participants like Raphael Tuju who continued to sit in some Cabinet meetings in an advisory role.
Mr Khafafa is a public policy analyst
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