Ruto witnesses swearing-in of 50 CASs amid debate on legitimacy

"7.30am. Because court starts at 9am," lawyer Waikwa Wanyoike tweeted of the oath-taking ceremony. "The Constitution expressly insulated us from dusk and night swearing-in. Its spirit must surely insulate against dawn swearing-in."

State House spokesperson Hussein Mohamed Wednesday evening communicated the president's appointment of the 50 CASs after National Assembly Speaker Moses Wetang'ula declined to have Parliament vet them.

"The obligation to respect, uphold and defend the Constitution enjoins the House to refrain from assuming and discharging a role that has not been expressly assigned by the Constitution or written law. In this regard, the National Assembly is unable to vet the nominees in the absence of an express constitutional or statutory requirement to do so," Mohamed quoted Wetang'ula as responding to Ruto's request to have the 50 vetted by Parliament.

Rarieda MP Otiende Amollo agreed with Wetang'ula's decision, stating that there was no basis in law for parliamentary vetting.

"Ruto was trying to have Parliament legitimise an illegitimate process," said Mr Amollo, who was among the experts that drafted the Constitution.

Constitutional lawyer Bobby Mkangi said that the appointment of the CASs without Parliament's approval is unconstitutional and violates public interest.

"The Public Service Commission (PSC), a constitutional commission, had recommended to the president the creation of the office, anticipating vetting by the National Assembly of potential office-holders, advertised the same to the public and argued the same to court, which approved it upon this aspect of approval by the National Assembly inter alia," Mkangi said.

He argued that Wetang'ula's statement should have seen the appointment of the CASs stopped.

"As envisaged, the office of CAS is a senior state office that lingers between that of the CS and PS, both of which Kenyans demanded approval by the National Assembly of holders to those offices. Appropriative implications are heavy on Wanjiku," he added.

Vetting of the CASs would have meant a prolonged process that would have lasted well over a week, given the time it took the National Assembly to approve the appointment of Principal Secretaries. Such a lengthy event would have potentially jeopardised the appointment of the CASs, given the legal hurdles it would have had to overcome.

The Law Society of Kenya (LSK) also opposed the appointment of the 50 CASs. "The PSC created 23 CASs positions. This is on oath in an affidavit in court. The president has created an extra illegal 27 positions. This invalidates the entire list," LSK President Eric Theuri tweeted on March 16.

The lawyers' body recently lost a case challenging the creation of CAS positions, with Employment and Labour Relations Court judge Monicah Mbaru ruling that the PSC had conducted sufficient public participation to create the CAS role.

But Amollo holds that despite the ruling, the CAS position is 'unconstitutional'. "The earlier court case that challenged the process in as far as public participation was conducted... the court was not invited to pronounce itself on the constitutionality of the position," he said, terming the creation of the CAS role "an attempt to amend the Constitution through the backdoor"

"When we wrote the 2010 Constitution, Kenyans wanted to reduce the expenditure of the Executive and that is why we reduced the number of Cabinet secretaries to a maximum of 22 and abolished the position of assistant minister. It is unconstitutional to establish a law that Kenyans expressly abolished," Amollo said.