When the President is presented with a shortlist of three candidates who have emerged from a competitive, publicly conducted recruitment process, what becomes of the principle of merit if the final choice is left to presidential discretion? Is this appointment model consistent with merit-based public service, and how can Kenyan law better safeguard merit in such appointments?
This column is reminded of Jeffrey Archer’s bestselling novel First Among Equals, which offers a useful lens for examining whether fairness in public appointments has a legal foundation and whether merit can withstand the exercise of discretion. Kenya’s constitutional design places nearly all processes leading to public service—anchored in the taxpayers’ mandate—under the principles of transparency, integrity and credibility. Article 10 embeds national values of good governance, while Article 1 affirms that sovereign power belongs to the people and is exercised only within constitutional limits. Together, these provisions establish fairness as a constitutional obligation rather than a discretionary courtesy.
Kenya’s framework for filling senior public offices such as commissioners, principal secretaries, ambassadors and heads of independent institutions relies on a hybrid process combining public participation, competitive shortlisting and final presidential appointment. This model was intended to address historical mischief rooted in nepotism, favouritism and patronage, often expressed through ethnicity, social solidarity and identity politics. By introducing structured competition and public scrutiny, the Constitution sought to replace opaque appointments with processes grounded in merit.
Article 232 expressly requires fair competition and merit in public service appointments. The Public Appointments (Parliamentary Approval) Act, 2011 reinforces this by requiring public advertisement of vacancies, parliamentary vetting, submission of nominees to appointing authorities and transparent evaluation. Additional statutes, including the Public Service Commission Act, the Independent Policing Oversight Authority Act, the Teachers Service Commission Act and the Intergovernmental Relations Act, also provide for selection panels. These panels conduct interviews, rank candidates and forward the top three names to the President.
This raises a critical question. Does merit remain intact when the appointing authority chooses from a shortlist of three, even if the highest‑scoring candidate is not selected? And does such a choice still meet the constitutional definition of competitiveness?
Articles 10, 232 and Chapter Six on leadership and integrity collectively anchor merit‑driven recruitment. Once a selection panel conducts open interviews and forwards the top three candidates, it has already completed the merit‑based stage of the process. The President’s task is to appoint from individuals who have met the established thresholds of competence, suitability and integrity. In principle, this preserves merit while allowing limited executive discretion.
However, several assumptions complicate this ideal. One is that selection panels are always properly constituted and operate with full integrity. Another is that the President, guided by advisors, holds unique insight into institutional fit, leadership style, regional balance and alignment with national priorities. These assumptions highlight the need for genuinely merit‑based shortlists and for presidential discretion to depart from the top performer only within constitutional bounds, such as affirmative action or national cohesion considerations.
Kenyan courts have affirmed these limits. In Trusted Society of Human Rights Alliance v Attorney General & Others (2012), the High Court held that public appointments must comply with constitutional values, including integrity, transparency and merit. The Court emphasised that presidential discretion must operate within constitutional constraints.
While merit is often visible through televised interviews and public participation, concerns arise when public participation appears superficial. The David Ndii & Others v Attorney General & Others (BBI) judgment underscored that public participation must be real, not symbolic. Just as justice must be seen to be done, public participation must be demonstrable and meaningful.
Further jurisprudence strengthens merit protection. In Consumer Federation of Kenya (COFEK) v Public Service Commission & Others (2014), Judge Isaac Lenaola, by the jurisdiction of his Court affirmed that recruitment must be competitive and merit‑driven, and that appointments made outside transparent procedures violate Article 232. In Okiya Omtatah Okoiti & 4 others v Attorney General & 5 others; Council of Governors & 4 others (Interested Parties) (2019) the High Court held that appointments must follow due process and that deviations can invalidate an appointment
These cases demonstrate that although the merit‑driven appointment process has gaps, the possibility of mischief cannot be ignored. Selection panels operate within defined integrity constraints, and presidential discretion is constitutionally limited rather than absolute. Article 22(1) empowers any person, through the principle of public interest standing, to challenge appointments that appear arbitrary, discriminatory or inconsistent with merit.
The central challenge is achieving a careful balance: Preventing unilateral or politically expedient appointments while preserving legitimate executive authority.
Selection panels must avoid advancing candidates who attract public doubt, and the President must refrain from appointing individuals who have not undergone meaningful scrutiny. Ultimately, the courts, acting within the authority of the Constitution, must remain the final guardians of merit and fairness when called upon.
