Legal dilemma for fired CSs and why many won't return to power

President William Ruto (centre) poses for a photo with his Cabinet on July 11, 2024. [PCS]

President William Ruto is under pressure not to recycle members of his former Cabinet as he picks new cabinet secretaries, next week.

Similarly, Generation Z and Millennial protesters have opposed the onboarding of opposition politicians they deem tainted by corruption and other scandals.

As the president weighs his options, legal experts now warn that Ruto would breach the Constitution if he were to recycle some sacked CSs.

Former Law Society of Kenya president Nelson Havi argued that the dismissal of the CSs and former Attorney General Justin Muturi, makes them “ineligible to hold any public office forever: appointive or elective.

“They are in the same category as impeached governors or judges found unsuitable to serve. That is the law,” argued Havi, reacting to a gazette notice announcing the dismissal of the CSs and appointment of Prime Cabinet Secretary Musalia Mudavadi to act in all the vacancies.

Under siege from Gen Zs and Millennials, Ruto sacked his entire Cabinet, save for Mudavadi, last week, a demand the protesting youth raised. The president has since announced he will appoint replacements next week and is expected to form a coalition government with the Raila Odinga-led opposition despite backlash over the plan. 

“The operating word is ‘dismiss’,” Havi added, justifying his reasoning with the fact that there is a court petition challenging Muturi’s dismissal. “Do you think those behind it are fools? They are not! It is because the dismissal has the terminal effect,” said Havi.

When he fired Muturi, Ruto cited Section 12 of the Attorney General’s Act. The Constitution offers the Head of State no provision within which he can sack the attorney general, who enjoys the security of tenure, but the stated Act does. The only grounds within which the president may remove the AG include serious violation of the Constitution or any other law, gross misconduct, physical or mental incapacity to perform the functions of office, incompetence or bankruptcy. The Constitution, however, grants the president powers to dismiss cabinet secretaries.

Lawyer Ahmednasir Abdullahi agreed with Havi, saying Ruto’s dismissal of the CSs under the Constitution “implied a grave omission or commission”.

“In dismissing his cabinet, President William Ruto was satisfied that their conduct (and) performance in office of their omissions rose to a constitutional level that warranted their dismissal... that grave omission or commission hasn’t been erased or addressed in the past week and can’t be addressed in the future,” posted Abdullahi.

Ruto acknowledged that he had conducted a “holistic appraisal of the performance” of his Cabinet, but did not point out more specifics.

Impeached governors, like ike Sonko (Nairobi) and Ferdinand Waititu (Kiambu) and judges, cannot hold public office. But as former Public Service Cabinet Secretary Moses Kuria argued, such officers usually undergo disciplinary processes and defend themselves against allegations that could lead to their ouster.

“The affected persons then have to be taken through a disciplinary process or a court martial. Not a class action,” he said.

Foreign Affairs Principal Secretary Korir Sing’oei also disagreed with Havi and Abdullahi’s assertions, arguing that none of the dismissed officials were “impugned so as to render them permanently infirm to serve”.

“That is not to say the political cost of any reappointment is insignificant; a calculus I am certain the president is conscious of,” said Sing’oei.

Indeed, many Gen Z and Millennial protesters have rejected the reappointment of officials who were part of the collective display of arrogance and opulence amid harsh economic times.

Polls released ahead of next week’s Cabinet announcement also show majority of Kenyans do not support recycling even those deemed to be “performers”.

Havi also warned that incorporating Raila’s allies could also result in a breach of the law. “President Ruto must resist the apocalyptic urge to appoint former ODM governors to Cabinet. It is public knowledge that all of them are under probe for corruption. Any such appointments will dent the President’s image as did that of Anthony Mwaura as chairman, KRA,” said the lawyer.

On Monday, the High Court ruled that Mwaura’s appointment to chair the Kenya Revenue Authority was unlawful as he was appointed while facing charges of corruption.

Among those believed to be joining the Cabinet are former governors Wycliffe Oparanya and Hassan Joho, both Raila’s deputies in ODM.