Back to Sender: Why court has rejected Ruto's bloated team of advisers

President William Ruto’s economic advisor David Ndii and national security advisor Monicah Juma during a Cabinet meeting at State House, Nairobi. [File, Standard]

They earn fat salaries, are driven in big cars and enjoy State power under the guise of offering expert advice to the President.

Some of them are clueless and lack an understanding of the reality of the people. But these are the President’s men and women.

Appointed against constitutional safeguards, the ever-expanding list of presidential advisers is unashamedly siphoning Kenyan taxpayers’ money with little to show for it.

On Thursday, High Court Judge Bahati Mwamuye said that while the road to hell is paved with good intentions, the 21 experts hired by President William Ruto to help him run the government are illegally in office. He barred payment of their salaries.

Justice Mwamuye directed that the Attorney General and the Public Service Commission (PSC) immediately stop payment of salaries to Prof Makau Mutua, Dr David Ndii, Prof Edward Kisiang’ani, Dr Monica Juma, Joseph Boinnet, Jaoko Oburu, Dr Silvester Okumu, Harriett Chiggai, Maj (Ret) Mahat Somane, Prof Abdi Guliye, Dr Dominic Menjo, and Dr Nancy Laibuni. Others are Kennedy Ogeto, Sylvia Kang’ara, Augustine Cheruiyot, Henry Kinyuai, Joe Ager among others.

Shockingly, some Sh2.44 billion has already been gobbled up by these advisers, without the involvement of the Salaries and Remuneration Commission (SRC), to establish whether the salaries were a waste of public resources or within fiscal limits.

While agreeing with lawyer Lempaa Suyianka and the Katiba Institute that Ruto created offices that handpicked the advisers, the judge said the government did not check whether their work duplicated the functions of Cabinet Secretaries, the Attorney-General, Principal Secretaries, Ambassadors or High Commissioners.

President William Ruto chats with David Ndii, one of his advisers in the company of National Assembly Majority Leader Kimani Ichung'wah during a previous retreat. [PCS]

Justice Mwamuye stated that although the move to appoint the advisers was meant to deepen the capacity of government, the exercise was vague, conducted in secret, and a violation of the Constitution.

Justice Mwamuye said that CSs, PSs, High Commissioners and Ambassadors are hired and paid to advise the President. He added that the appointment process is competitive and that they have clearly defined roles.

However, for the advisers, he said the office of an adviser to the President should equally be subjected to the same process as that of other officials.

At the same time, Justice Mwamuye said the appointments violated the principles of competition and merit, as the positions were never advertised.

“Specific individuals were simply named by the President’s Executive Office and thereafter appointed as fait accompli. This is precisely the handpicking or jobs-for-the-boys culture that Article 232 was designed to eliminate.”

“The Constitution of Kenya 2010 introduced clear criteria for appointments to State and public offices to replace the old order of ethnicity-driven appointments, politicisation of the public service, cronyism, and recycling of persons who had been rejected by the electorate at the ballot box — an order that was much maligned and resoundingly rejected by the people of Kenya when they promulgated the 2010 Constitution,” said Justice Mwamuye.

According to the judge, the President ought to have consulted the PSC and the SRC to ensure public funds were being spent responsibly.

He said there was a need to establish from the SRC whether the work done by the 21 advisers duplicated existing roles, and for the PSC to conduct a needs assessment before any hiring process.

“The process followed was the antithesis of transparency. It was conducted through confidential correspondence, with details of positions, criteria and salaries undisclosed to the public. It was the very definition of an opaque process.”

He directed that the Attorney General and the PSC should immediately stop payment of salaries to the advisers.

At the same time, he ordered that the commission should, within 90 days, conduct an audit of all offices created by the President since the promulgation of the Constitution in 2010 and verify their compliance with the PSC Act and the Constitution.

Mutua and Ndii’s team were not the only casualties, as the court widened the net by requiring the PSC, after the audit, to abolish all offices found to have been established unconstitutionally or unlawfully. It is required to report within 120 days on compliance.

In the case, Katiba argued that the President has no role in directly hiring people to work in his office or government. Katiba’s lawyer, Joshua Malidzo, told Justice Mwamuye that the President had embarked on an unconstitutional path.

“When a President embarks on a potholed constitutional journey meant to undermine the Constitution, he needs to be stopped in his tracks before any further damage to the Constitution,” argued Malidzo.

On the other hand, Lempaa said the President had created positions that were illegal and were being abused to shelve rejects.

Lempaa stated that the law does not allow any hiring at State House other than positions reserved for the personal employees of the President.

He added that failure to cap the number of such appointments makes the process an open cheque for the President to exploit.

“That lack of a law and/or regulations on how many advisers the President can appoint is not carte blanche to saturate and inundate the public service with political appointees,” he said.

He asserted that their work can be handled by relevant civil servants in various government departments.

The lawyer also said that the PSC had not been consulted about those who took office and was not involved in their appointment.

He further said there was no transparency in how the President arrived at the list of persons appointed.

Lempaa argued that the positions ought to have been competitively filled to give other qualified persons a chance. He was also of the view that the salaries and hierarchy among the advisers were not reflected in the government organogram.

The lawyer said the President also failed to factor in disability inclusion and gender parity.

In her response, Attorney-General Dorcas Oduor claimed the appointments were made in compliance with the law. According to her, the PSC was responsible for the appointments, determined the number needed, and acted on written requests from the President.

She said the team had unique competencies, adding that they were vetted, inducted and given non-supervisory, non-duplicative roles on time-bound contracts.

According to her, their appointments were financed from the approved budgetary allocation to the Executive Office of the President.

She said the cases did not disclose any reasonable cause of action.

But this is now the fourth time Dr Ruto has been faulted by the courts for creating offices and making appointments without consulting the PSC and SRC. Others were found to duplicate work done by existing offices and agencies.

President William Ruto during a previous Cabinet Meeting at State House Nairobi. [PCS]

It began with the creation of Cabinet Administrative Secretaries (CASs). Dr Ruto appointed 50 political allies, positions that were to cost Kenyans Sh500 million annually.

The positions were similar to the defunct assistant minister roles and were meant to answer queries relating to their portfolios, as well as liaise with Parliament and county governments.

However, High Court judges Kanyi Kimondo, Aleem Visram and Hedwig Ong’undi in 2023 declared the appointments illegal, finding no evidence that Kenyans could afford to keep them in office.

The Court of Appeal also declined to allow them to assume office as their appeal was pending.

Another case involved the health task force. The President appointed 20 people to the Presidential Task Force on Health in 2024.

However, Justice Mwamuye later found that the work of the task force could not be used, as it was illegally constituted.

According to the judge, the task force duplicated the work of the Kenya Health Human Resources Advisory Council (KHHCRAC), which President Ruto had inaugurated a year earlier but failed to operationalise.

The judge ruled it was illegal and unconstitutional to appoint another team to do the same work.

Then came the controversial panel on the compensation of protest victims. Ruto appointed Makau as chair and Law Society of Kenya (LSK) President Faith Odhiambo as vice-chair, though she later resigned following public outcry.

Justice Edward Mureithi said Ruto had good intentions but erred in appointing the 14-member panel.

He ruled that the President should instead have sought a report from the Kenya National Commission on Human Rights on violations and compensation mechanisms.

The judge directed the President to amend his proclamation and gazette notice within 30 days, failing which the court would quash it.