20 senior officers in limbo as High Court nullifies CAS post
President Uhuru Kenyatta addresses then newly sworn-in Chief Administration Secretaries (CAS's) at State House, Mombasa on January 17, 2020.
What you need to know:
- Allies of ODM and Wiper party leaders Raila Odinga and Kalonzo Musyoka affected by the court's decision.
- Court also found Cabinet secretaries who were reappointed in the second term of the Jubilee administration were supposed to be approved by the National Assembly.
The High Court has nullified President Uhuru Kenyatta’s decision to create the office of Chief Administrative Secretary (CAS), leaving more than 20 government officers in limbo.
Justice Anthony Mrima declared the office that was created in 2018, and which gave a lifeline to a number of 2017 poll losers, was established contrary to the Constitution and the law.
Among the prominent politicians affected by yesterday's court declaration are former Budalang’i MP and once ODM Secretary-General Ababu Namwamba, who serves as CAS in the Ministry of Foreign Affairs and International Trade, as well as former Kilifi North MP Gideon Mung’aro, who serves as Devolution and the Asals CAS.
Other notable politicians include former Nairobi Woman Representative Rachel Shebesh and former Nairobi Speaker Beatrice Elachi (both at the Ministry of Public Works, Youth and Gender Affairs) as well as former Tharaka MP Alex Mburi Mwiru (Ministry of Lands and Physical Planning).
Other former MPs affected by the judgment include Patrick Ole Ntutu (Narok West), Nelson Gaichuhie (Subukia), Chris Obure (former Kisii senator) and former Kisumu Central MP Ken Obura.
Allies of ODM and Wiper party leaders Raila Odinga and Kalonzo Musyoka, respectively, who were appointed in government courtesy of the 'Handshake', have also been affected by the court's decision.
They include former University of Nairobi (UoN) student leader and political analyst David Osiany, a close ally of Mr Odinga, who was two months ago appointed CAS in the Ministry of Industrialisation, Trade and Enterprise Development.
Cabinet secretaries
He was a Youth adviser to Mr Odinga when the latter was Prime Minister. Mr Osiany is said to be eyeing the Rongo parliamentary seat.
On Mr Musyoka's side is Mr Jackson Musyoka Kalla, who was appointed in a similar capacity in the Ministry of Labour and Social Protection.
Mr Kalla is a close ally of Mr Musyoka and was the first runner-up in the 2017 Machakos senatorial race on a Wiper ticket.
The court also found Cabinet secretaries who were reappointed in the second term of the Jubilee administration were supposed to be approved by the National Assembly.
However, the said Cabinet secretaries who include Eugene Wamalwa, Charles Keter, James Macharia, Fred Matiang'i, Joe Mucheru, Amina Mohammed, Najib Balala and
Raychelle Omamo will not leave office.
The judge said due process with regard to appointive positions including those of Principal Secretaries and the two-thirds gender rule must be observed.
The judge directed the Attorney-General to give a report to the court within 30 days.
Violated the Constitution
The court also invalidated appointments to the Principal Secretary post of people who have not been identified and recommended by the Public Service Commission through a competitive and merit-based recruitment process.
The ruling stemmed from a petition filed by rights activist Okiya Omtatah, who argued that Cabinet secretaries are not transferable from one term of the President to another and must be vetted afresh by the National Assembly for the second term.
Mr Omtatah told the court that creating the office of CASs without considering the cost implications was in violation of Article 201(d) of the Constitution, which provides that public money shall be used in a prudent and responsible way.
The activist was aggrieved that, at a time the country’s ballooning wage bill was a matter of grave concern, no consideration was given to the costs of running the new offices that were created in all government ministries.
He argued that the President and the Attorney-General violated the Constitution by creating a new office in the Public Service to assist Cabinet secretaries with their mandate without public participation.
He further contended that the formation of the position of CAS was invalid, null and void.
Another violation of the law, the activist held, was handpicking and appointing persons without subjecting them to a merit-based competitive recruitment process.
When announcing the list of Cabinet secretaries in 2018, President Kenyatta said the CASs would broadly be responsible for helping the Cabinet secretaries to better co-ordinate the running of the affairs of their respective ministries.
