Cases test legitimacy of Ruto-Raila picks ahead of swearing-in

President William Ruto and opposition leader Raila Odinga’s deal on Cabinet Secretaries faces uncertainty after several cases were filed to challenge the nominees’ suitability and move to have the opposition in government.

Parliament will not have the final say as two cases before the Malindi High Court and another in the Milimani High Court challenge the nominees’ suitability to be CSs.

Courts will determine whether former CSs who have been nominated to Cabinet and others from the opposition will join government.

The first legal battle will be whether Prof Kithure Kindiki, Adan Duale, Kipchumba Murkomen, Alice Wahome, Salim Mvuria, Rebecca Miano, Dr Alfred Mutua, David Chirchir, Justin Muturi and Soipan Tuya should be re-appointed despite the President dismissing them from his first Cabinet.

The case was filed by lawyer Saitabao Ole Kanchory, who argued that the import of the dismissal meant that those in Cabinet could not hold public office.

He accused President Ruto of violating the Constitution by nominating some of the sacked CSs for reappointment to Cabinet.

“The 1st Respondent’s action above of nominating the 5th to 14th Interested Parties for reappointment as Cabinet Secretaries notwithstanding the valid and unmitigated reasons earlier given for their dismissal is a gross and flagrant abuse of the public trust vested in him as President and demonstrates utter contempt and spite for the people of Kenya,” argued Kanchory.

The lawyer argued that the dismissal of the first Cabinet was out of public demand following an appraisal that their work was not satisfactory. He also cited corruption as one of the reasons why Kenyans went to the streets to demand the dismissal of some CSs.

Another issue is whether the president can nominate Members of Parliament to the Cabinet. Kanchory said the decision to have opposition MPs James Opiyo Wandayi (Energy CS nominee) and John Mbadi (Treasury CS) in government violates multi-party democracy and creates an ineffective oversight mechanism.

He alleged that the arrangement between Ruto and Raila had, in effect, created a one-party state.

Kanchory sued Ruto, Speaker of National Assembly Moses Wetang’ula and the Attorney General.

At the same time, he also sued former governors Hassan Joho and Wycliffe Oparanya who were also nominated to Ruto’s ‘expanded Cabinet.’

Kanchory asserted that the opposition cannot be in government.

“The attack and attempt by the 1st Respondent to water down our multiparty democracy along with its inherent principles of good governance, integrity, transparency and accountability is an abrogation of his duty to respect, uphold and safeguard the Constitution as stipulated under Article 131(2) as read with Articles 2, 3, 4(2) and 10(2)(a) and (c) of the Constitution,” he argued.

The other case is filed by activists and a human rights organization, Kenya Tuitakayo. The group led by Cyprian Nyamwamu not only wants a declaration that the CSs that had been dismissed but nominated be sent packing but also wants to send the President and his deputy Rigathi Gachagua home.

The human rights crusaders argued that the nominees cannot make a comeback as the cabinet was not dissolved.

In their amended case, the group also singled out Kindiki over the police brutality during protests.

They want a finding that the professor of law should carry the burden for the violations by the police.

The 14 petitioners also want President Ruto held to account for the lives lost and those maimed during the election.

They said that just like Kindiki, he too did not call for police accountability.

“The ongoing public protests seeking good governance and accountability, he has encouraged, aided and abetted gross violations of human rights by security agencies under the dockets of the erstwhile Cabinet Secretaries Hon Kithure Kindiki and Hon Adan Duale,” the court document reads in part.

The group also challenged Wandayi and Mbadi’s nomination to Cabinet saying a by-election would be an unnecessary cost to Kenyans.

They argued that Kenyans had to go back to by election after Kindiki, Murkomen, Duale and Wahome were appointed as CSs.

“Petition accuses the 1st Respondent of violating Article 201 of the Constitution on prudent use of public resource by nominating and appointing Hon Kithure Kindiki, Hon. Aden Duale, Hon Alice Wahome and Hon Kipchumba Murkomen who were Members of Parliament to the positions of Cabinet Secretary which occasioned by-election in their respective counties at considerable but unwarranted cost to the tax payers,” they claimed.