Will Ruto’s court defeat check or embolden him?

It has been smooth sailing for President William Ruto’s Kenya Kwanza Government in the courts of law ever since the Apex Court decided the Presidential Election Petition of 2022 in their favour and ushered them into power.

The cosy relationship between the Executive and the Judiciary that ensued after Kenya Kwanza formed government had legal pundits wondering if the Judiciary would guard our progressive Constitution against Executive excesses of the new political dispensation.

First, President Ruto appointed into office in September, hardly a month after assuming office, the six judges his predecessor had rejected in June 2021. President Uhuru Kenyatta’s rejection of the six had put him on a collision path with the Judicial Service Commission, which insisted that the President’s role in the recruitment of judges was merely ceremonial. The new regime then topped that with increased the Judiciary’s funds allocation in its inaugural budget for the Financial Year 2023-2024 by Sh4.1 billion from Sh18.8 billion to 22.9 billion.

In the meantime, courts allowed unprecedented withdrawals of high-level active corruption cases by the Office of the Director of Public Prosecutions (ODPP) against former top government officials that supported the new President’s bid for power.

Unrelated as the appointment of the six judges, increase in budget allocation to the Judiciary and withdrawal of active high-level corruption cases may be, the legal fraternity and the public at large wondered if the Nyayo era days when court cases were decided on the whims of judges and their political godfathers.

Then, disturbingly, the trend of blatant disregard for court orders by the Executive reemerged. The Government, through the Energy and Petroleum Regulatory Authority (EPRA), recently revised the fuel pump prices in line with the Finance Act that the court has suspended.

In March this year, the President shocked the country when he went against advice, and his own pre-election pledge, including an existing court decision, tough economic times and the public outcry to appoint 50 Chief Administrative Secretaries (CAS), 27 more than there had been in the previous regime. 

Four petitioners, including Eliud Karanja Matandi, an active citizen and a defender of the Constitution, the Law Society of Kenya (LSK), Katiba Institute and Multi-Touch International, went to court in Petition No. E080 of 2023 for the first petitioner, consolidated with E084, and E150 of 2023 for the second and third petitioners to try to quash the appointments.

The public, sceptical about the Judiciary’s independence under the new Kenya Kwanza regime, almost dismissed the attempt as futile. The proceedings went on unnoticed, but it was the most unexpected when the verdict came out on July 3. The three-bench High Court judges agreed with the petitioners in a bold judgment that has sent home all the 50 CASs and the Executive back to the drawing board.

The petitioners sought various orders against the President, the Attorney General, the National Assembly, SRC and PSC as first, second, third, fourth and fifth respondents. Generally, however, they sought an order nullifying the decision by the President to unilaterally create an additional 27 positions in the claimed public office of CAS and nominate for his appointment 50 persons; an order quashing the notification of the President dated March 16, 2023, notifying the nomination of the 50 for appointment subject to approval by the National Assembly; a declaration that the recruitment process violated the Constitution and the PSC Act; a declaration that the appointment of the 50 did not meet the mandatory constitutional and statutory requirements and; a declaration that the recruitment, nomination and appointment of the 50 were contrary to the provisions of the Constitution and therefore null and void, among other prayers.

The facts

The petitioners contended that the PSC abdicated its mandate under Article 234 of the Constitution by establishing a public office contrary to Articles 10 and 232. The process of vetting and approval of the CASs by the National Assembly would be in breach of Articles 2(2), 4(2), 10(2), 94, 95, 232(1) and (2) and 259(1).

In the petitioners’ case, the PSC invited public members to comment on the proposed establishment of the office of CAS in a September 21, 2022, press statement. This came after the President had asked the PSC to establish the office per Article 132(4)(a) of the Constitution. Subsequently, the PSC abolished the previous office of CAS established by the last regime on January 24, 2018, but which was declared unconstitutional by the High Court in Okiya Omtata & another v PSC & 73 other: LSK & another (interested parties) 2021 eKLR.

The PSC, the petition revealed, invited applications for 23 positions in the office of CAS on October 12, 2022, with remuneration and benefits for the office based on the feedback received from the SRC. The petitioners argued that in as much as the PSC tried to comply with the conditions spelt out in the decision of the High Court in the Omtata case, the creation of the 23 positions was still unlawful owing to the requirement in Section 3 of the Public Appointments Act, 2011 that Parliament must approve such appointments.

PSC’s advertisement was challenged in the Employment and Labour Relations Court in LSK v PSC and the Hon. Attorney General. The court, however, found that the PSC had complied with the appropriate process for hiring the 23 CASs, paving the way for the shortlisting of 240 candidates for interviews conducted between March 1 and 7. 2023. The President, however, nominated 50 persons for appointment in his March 16, 2023 resolution.

The President, the petitioners argued, acted unlawfully in nominating additional 27 CASs when PSC had only advertised for 23 that the decision was unilateral. They argued the nature of the irregular and additional offices, the nominees’ profile, purported functions and the decision to subject them to approval by the National Assembly demonstrated that the offices were intended to be State Offices, yet the same had not been established either by the Constitution or an Act of Parliament. They also contested the list of 240 shortlisted candidates, dominated by political allies who selected based on political patronage to reward and favour the President.

They argued that even though the Speaker of the National Assembly, vide a letter of March 22, 2022, declined to vet the nominees and referred the matter back to the appointing authority, PSC, via a special Gazette Notice, appointed the 50 nominees; that the vetting and approval of the additional 27 positions by the National Assembly would still have been in breach of the Constitution; that the decision to form and expand the CAS office was not subjected to meaningful public participation, which offends Articles 10 and 201(d) of the Constitution.

In response, the Attorney General submitted that the petition, in challenging the process for appointment of CASs, was premature and non-justiciable. He also argued that the ELRC had already determined the matter and that the establishment process of those offices had been preceded by elaborate public participation in compliance with the Constitution and the PSC Act.

The Attorney General’s initial plan had been to have one CAS per ministry. Still, after further reflection within the government, it was realised that there was a need to increase the number to cover each department. The decision had been made with the concurrence of the National Treasury regarding the availability of funds to meet the resultant expenditure of additional numbers.

The National Assembly, relying on the affidavit sworn by the Chamber’s Clerk, also zeroed in on the issue of lack of jurisdiction of the instant court and asserted that it was ELRC that had jurisdiction, adding that the High Court could not make decisions on matters that should be the reserve of specialised courts under Article 162(2). He further argued that Okoiti (Omtata) & another v PSC & 73 others set out the criteria for establishing the new CAS office, with successful candidates being nominated and appointed by the President upon approval by the National Assembly. He disclaimed that neither constitutional, statutory obligation nor legal framework mandated the National Assembly to vet or approve the nominees.

Flawed process

The Court summarised the pleadings, evidence and the massive submissions into seven issues for determination, key among them whether the High Court had jurisdiction on the matter if any of the issues in the case were res judicata and; if the President and the PSC had the power to create the new office of CAS in the manner in which they did.

On the jurisdiction issue, the Court found no merit in the preliminary objections of the respondents and dismissed them. It did not agree with the arguments that the ELRC has unique competencies in employment and labour relations law and ought to have deferred to it.

The jurisdiction of the High Court, the judges averred, flows from the Constitution. Article 165(3) states that the High Court shall have (a) unlimited original jurisdiction in criminal and civil matters and (d) jurisdiction to hear any question respecting the interpretation of the Constitution.

The Court also relied on the decision of the Supreme Court of Kenya in Samuel Kamau Macharia & another v KCB Ltd and 2 others where it was held that “A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate jurisdiction exceeding that which is conferred upon it by law.” As such, the Court found its mandate to have been properly invoked.

The Court also addressed whether any issues raised in the consolidated petition had been conclusively addressed in earlier cases to warrant no need for further pursuit. Similar matters had been litigated in two previous matters, namely, Okiya Omtatah Okoiti & another v PSC & 73 others with LSK & another as interested parties, and in LSK v the PSC & others in the ELC.

The bench agreed that each of the two courts heard and determined the matters conclusively and reached conclusions about numerous issues before it. It decided that one, a relief that offices of CAS are State Offices which can only be established and designated as State Office by national legislation; that the National Assembly has no constitutional powers to approve for appointment those nominated to the CAS positions; and a declaration that the President is bound by the recommendations of the PSC on the creation of an office in the Public Service were res judicata and excluded them from their determination.

As to whether there was adequate public participation in the creation of the office of CAS concerning the other 27 posts, the Court found that the sequence and procedure that led to the establishment of the other posts did not adhere to the constitutional principle under Articles 10 and 232 of the Constitution and the conditions set out under Sec. 27 of the PSC ACT. They also found that it did not satisfy the guiding principles set out by the Supreme Court in the BAT case, which, the Court averred, requires that public participation be real and cover all forms of governance. 

The public participation in respect of the CAS positions was based on creating the CAS office in each Ministry and not each State Department as indicated in the President’s letter of February 23^rd 2023. As such, the Court found that PSC failed in its mandate on public participation and, therefore, the process establishing the extra 27 posts was unconstitutional

The other key issue before the Court for determination was whether the President and the PSC had the power to create the office of CAS in the manner they did. The Court argued that Article 152(1)(d) of the Constitution limits the maximum number of Cabinet Secretaries to 22. The Final Report of October 11, 2010, of the Committee of Experts, the Court averred, noted that Kenyans wanted that there be a clear distinction between offices of State and offices of Government and that following public debates, the position of the Assistant Minister was abolished altogether and did not make it to the Constitution of Kenya 2010. The creation of a similar office to the Assistant Minister, which the 2010 Constitution had abolished, could not be how the President and the PSC proceeded.

Besides, the Court ruled that the stay in the Court of Appeal had preserved the original office created on January 24, 2018. Once that office was abolished on September 21, 2022, the newly created office and complement of 23 officeholders could no longer benefit from that stay. Accordingly, the newly created office and fresh complement of 50 had to comply with the Constitution and the criteria set out in the Okiya case to be lawfully established.

The Court found the CAS office created by the President and the PSC and contained in the Kenya Gazette Special Issue No. 12432 of October 12, 2023, unconstitutional. It also found the entire complement of 50 CASs unconstitutional and quashed the notification by the President on March 16 appointing the 50 CASs.

This judgment has given President Ruto, who has been used to having both his say and way, especially in the Legislature, his first significant loss since he came to power in September 2022. It should remind the powers that there are still men and women out there whose allegiance is still owed to nothing but the Constitution and the law.