New Cabinet must win public trust and serve with humility

The debate on the possible reappointment to Cabinet, of persons who had previously served in the dismissed Cabinet was effectively put to sleep, at least politically, by the President’s announcement of his new Cabinet last evening.

Eminent legal minds, including two former chairs of the Law Society of Kenya had given focus to this debate, intimating that arising, firstly, from the context in which the CSs were fired, and secondly, in view of the President’s explanations for the dismissals, the firing of the CSs amounted to dismissal for cause.

Consequently, these dismissed public officials were precluded from being reappointed or indeed being appointed, or even elected, to any public office by dint of Chapter 6 of the constitution and the “Sonko” Supreme Court rule.

As a political point, this argument was sustainable, in the same way that concepts like “political responsibility” are sustained by quasi-legal validity. But purely as a matter of law, and with utmost respect to these learned gentlemen, the Constitution does not support this position.

The Constitution distinguishes two circumstances in which the President can dismiss their Cabinet Secretaries. Article 152(5)b provides that the President can dismiss a Cabinet Secretary, period. No reason need be given. He can fire them for cause, for political expediency or purely to reorganise government or for whatever reason.

This provision recognises that as his assistants, Cabinet Secretaries serve purely at the pleasure of the President. In the present circumstances, the President’s explanations for dismissing all CSs are general and do not indict any particular CS. It would be a stretch to argue that the explanations reach a “for cause” threshold to fall within the Sonko rule.

As an aside, the only exception is the Attorney General where the Office of Attorney General Act precludes the President from dismissing the AG other than for cause, despite the constitutional provisions. This matter is in court so we shall leave it there. The second circumstance is where President is required to fire a Cabinet Secretary by Parliament under Article 152(6). This Article lists the grounds for dismissal as gross misconduct, violation of the constitution or any other law and where it is believed that the CS has committed a criminal offence.

In those circumstances, the person requiring the Cabinet Secretary to be dismissed must provide particulars of the grounds alleged and the CS is then given an opportunity to defend themselves. If Parliament finds the grounds have been substantiated and votes in support of the dismissal motion, the President must dismiss the CS.

In my considered view, it is only in these circumstances that a dismissed CS is lawfully estopped from being reappointed or serving in another public office, following the Sonko rule. Beyond these clear provisions of the Constitution is a fundamental truism; these public officers are entitled to the constitutional protections of the rules of natural justice including the right not to be condemned unheard.

These are basic principles not taken away by one’s appointment to Cabinet. All is however not lost. Should any citizen believe a reappointed CS has been guilty of constitutional violations, the available option is to challenge such reappointment either by making interventions during the vetting process in Parliament and failing that, through the judicial process by providing evidence of misconduct or other such constitutional bar.

To his credit, the President has kept off the appointment list those CSs strongly associated with arrogance and mentioned in relation to sleaze. But purely as a matter of law, even these can be reappointed in Cabinet or other public service.

The strength of our Constitution is it protects the rights of even those we may detest. There can be no greater injustice than to deem people guilty because the crowds deemed them so and the President acceded to the public demands. Let us protect everyone’s constitutional rights.

Having said that, those who have received the privilege of making the cut must labour tirelessly to restore the lost confidence associated with the last Cabinet. The days of pushing citizens off the road and crossing the country in displays of opulence must be over. Not only must Kenyans get respect, but the CSs must now bring back civility and service in the civil service. 

-The writer is an advocate of the High Court of Kenya