Is Kenya’s Court of Appeal guilty of political bias?

Since the Moi-era, when it was the highest in the land, the Court of Appeal has set itself apart as perpetually in the government’s corner in defeating the letter and spirit of the law

By Ouma Ojango

When former President Uhuru Kenyatta, upon re-election, announced the names of those he had either retained or nominated and appointed to his new administration on 26^th January 2018, they included, besides cabinet members and their principal secretaries, 16 new persons appointed to the newly created office of cabinet administrative secretaries (CASs).

The constitutionality of the new office of CAS created by the President and the process of filling the positions in that office was controversial. In the same year, Okiya Omtatah, a renowned public-spirited individual and a human rights defender presently the Senator for Busia County, challenged the President’s actions in a Nairobi High Court Constitutional Petition No. 33 of 2018.

In relation to the creation of the CAS office and appointment of individuals into the same office, Mr. Omtatah specifically sought a declaration that the President had “threatened and violated the Constitution of Kenya 2010; sections 27 and 30 of the Public Service Commission Act, 2017; sections 3, 4 and 5 of the Fair Administrative Action Act, 2017; and sections 3, 4(1), 7, 8, 9, 10(a) & (b), 11 and 24 of the Leadership and Integrity Act, 2012.”

He argued that as political appointees, CASs are not part of the public service but of the Executive as Assistant Cabinet Secretaries and that the creation of such positions would require an amendment to the Constitution. That the President and the Public Service Commission (PSC) had no capacity in law to create positions outside the Public Service or that are not entrenched in the Constitution, and as such, the Office of CAS was unconstitutional, invalid, null, and void to the extent that it purported to amend the basic structure of the Executive arm of Government by creating assistants to Cabinet Secretaries contrary to articles 152 and 153 of the Constitution.

The petitioner also picked issue with the creation of the office of CAS, purported to create a mechanism where a Principal Secretary, a constitutional office holder, would report to a CAS, who was not a holder of a constitutional office.  That the appointment to the office of persons to be administrative secretaries was not competitive and merit-based and was therefore invalid and of no legal effect.

He sought orders to quash the creation of the office of CAS in all Government ministries and compel the beneficiaries of the impugned appointments to refund to the State all payments made to them in the form of salaries, allowances, and benefits.

The respondents, including the PSC, Attorney General, and the Speaker of the National, variously denied any violation of the Constitution and the law, positing that the impugned actions were constitutional and legal.

Even though Justice A. C. Mrima did not stay the appointments, he consolidated the petition with a similar one, Nairobi High Court Constitutional Petition No 42 of 2018, by the Kenya Human Rights Commission, a Non-Governmental Organization having an interest in human rights-centred governance, Justice. The second petition broadly challenged Uhuru’s government formation on the constitutional gender balance, persons with disabilities and youth, and the minority and marginalized groups thresholds as provided for in articles 27, 54(2), 55(b), and 56(a) of the Constitution, respectively.

The honorable judge framed the following key issues, among others, for determination: Whether the creation of the Office of the Chief Administrative Secretary is contrary to articles 152 and 153 of the Constitution in so far it is not an office within the public service but an office in the Executive; If the answer to (ii) above is in the negative, whether the Office of the Chief Administrative Secretary was properly created within the constitutional and statutory framework and; Whether the President can nominate and/or appoint Principal Secretaries and Chief Administrative Secretaries who are not recommended for appointment by the Public Service Commission and approved by the National Assembly.

The Court, in effect, found, in a judgment delivered on April 20, 2021, that the claim that the processes towards the establishment of the Office of the Chief Administrative Secretary were in contravention of articles 10, 47, 132(4)(a), 201(a), 232(1) and 234(2)(c) of the Constitution as well as sections 27 and 30 of the PSC Act and declared the Office of the Chief Administrative Secretary unconstitutional.

Aggrieved, the Government filed a Notice of Appeal of the High Court judgment in Public Service Commission & 72 others v Okiya Omtatah & 4 others [2021] eKLR.  In a Notice of Motion dated April 29, 2021, the Government substantively sought a stay of the judgment and order of the High Court decision pending hearing and determination of the intended appeal.

They argued, among others, that the intended appeal would be rendered nugatory should it ultimately succeed if the substratum of the appeal is no more or out of reach for the successful appellant and that should the relief sought not be granted, the disruption of Government operations and the resultant effect of service delivery to the people of Kenya would be irreversible and not capable of being compensated by an award of damages. The Court of Appeal, on 23 July 2021, obliged and issued orders staying the execution of the judgment of the High Court.

However, the hearing and determination of the petition were yet to be disposed of by the Court by the time President Uhuru Kenyatta finished his second term and vacated office in September 2022. In effect, the CASs served a full term, and the public never got to know from the Court of Appeal whether, indeed, as had been determined by the High Court, the office was unconstitutional or otherwise.

The déjà vu

In March this year, President William Ruto went against all odds, including the High Court’s suspended orders that had declared the office of CAS unconstitutional and tough economic times. He appointed 50 persons to the position of CAS, 27 more than President Kenyatta had left in office.

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

Their petition mirrored Petition 33 & 42 of 2018 (Consolidated) of Okiya Omtatah and the Kenya Human Rights Commission. The pleadings were nearly similar. So were the issues for determination framed by the Court, which also reached a similar determination. 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 of March 16 by the President appointing the 50 CASs.

The Attorney General, Mr. Justin Muturi, immediately filed a notice of appeal in the Court of Appeal against the High Court judgment. This, even as the same court is yet to render a decision on a similar appeal pending by Mr. Muturi’s predecessor, Mr. Paul Kihara, in 2021 against a High Court’s judgment nullifying Uhuru Kenyatta’s appointees in the same office. Should the Government push a little harder on this one, with an existing precedent, the Court of Appeal will likely stay the High Court orders on the matter and give Kenya Kwanza’s government a lifeline.

Similarly, the same Court predictably lifted the High Court’s suspension of the controversial Finance Act 2023 after the applicants had argued, among others, that the suspension would disrupt crucial government operations and cause substantial financial losses, hindering executive duties. The High Court, while suspending the Act, had urged that the petition’s essence would be lost without conservatory orders.

With the lifting of the orders by the Court of Appeal, one wonders what happened to the argument that the petitioners’ appeal would be rendered nugatory should it ultimately succeed if a substratum of the appeal is no more or out of reach. Should the Court of Appeal agree with the petitioners at the end in their final judgment, if it ever comes in time, that the Finance Act 2023 is indeed unconstitutional, how will they reverse its damage on the people of Kenya now that the Government continues to draw taxes from their salaries and raised VAT on consumables? Are those actions even capable of being compensated by the award of damages?

Your guess is as good as mine. Like in the Public Service Commission & 72 others v Okiya Omtatah & 4 others [2021] eKLR, where the court gave Uhuru Kenyatta’s CAS appointees a lifeline by staying High Court nullification orders, the Court of Appeal orders staying the High Court’s suspension orders in the Finance Act 2023 petition are perpetual. Its judgment will never come through, not when this government is still in power and relying on the Act to generate revenue. It is a cheeky way of perpetuating an illegality, albeit within the law, warranting the question, is the Court of Appeal Government’s gatekeeper in the Judiciary?