Attorney-General Paul Kihara Kariuki has faulted the High Court for declaring the position of Chief Administrative Secretary (CAS) unconstitutional and illegal.
In his appeal against the decision, the AG is also fighting the court’s declaration that Cabinet Secretaries reappointed in President Uhuru Kenyatta’s first term should have been vetted afresh by the National Assembly before serving in the second term.
Mr Kariuki argues that no law requires Cabinet Secretaries re-appointed upon the re-election of a President to be vetted again.
He says the trial judge, Anthony Mrima, erred in finding that any Cabinet Secretary who served in the President’s first term and continues to hold office without the approval of lawmakers is violating the Constitution.
The trial court, in an April 20 judgement, found that lack of fresh approval contravenes Article 132(2) of the Constitution and sections 3 and 7 of the Public Appointments (Parliamentary Approval) Act.
“The tenure of office of a CS ends at the same time as the term of the President who appoints the CS,” the judge ruled.
“In the event the President wishes to have a particular CS continue to serve as such during the President’s second term, then the President has to comply with the process of nomination and approval provided for in the Constitution and the law.”
The declaration affected 10 Cabinet secretaries, including Fred Matiang’i (Interior), James Macharia (Roads and Transport), Joe Mucheru (ICT), Eugene Wamalwa (Devolution), Charles Keter (Energy) and Raychelle Omamo (Foreign Affairs).
Also affected were Adan Mohamed (East Africa Community), Sicily Kariuki (Water), Najib Balala (Tourism) and Amina Mohamed (Sports). The trial court ruled that they should have been vetted afresh for a second term in office.
The Attorney-General complains that the orders granted by the judge failed to identify the Cabinet Secretaries who are in office illegally.
The AG also opposes the judge’s finding that the position of CAS is unknown in law, as well as a finding that the recommendation of the Public Service Commission creating the position was an administrative action and that the law on hiring Principal Secretaries applied to recruiting CASs.
Judge Mrima found that the appointment of CASs was subject to fair administrative requirements and thus should have been competitive.
A majority of holders of CAS posts are 2017 poll losers, such as Ababu Namwamba, Nelson Gaichuhie, Gideon Mung’aro, Rachel Shebesh, Alex Mwiru, Linah Chebii, Ken Obura, Hussein Dado and Simon Kachapin. The post was created in 2018.
He said that the positions were not advertised. He ruled that the office of CAS was established under the public service and it is a state office within the meaning of Article 260 of the Constitution.
The AG also faults the trial court for finding that the requirement to include disabled people in the Cabinet was for immediate implementation.
Article 54(2) of the Constitution, he argues, provides that the requirement be implemented progressively.
He also rejects a finding that Principal Secretaries who were not either shortlisted, interviewed or recommended for nomination by the PSC to the President are in office unconstitutionally.
In his view, no provision of the Constitution provides for this process. He also observes that the court made orders in the nature of an advisory opinion or abstract propositions of law and did not directly resolve any real, earnest or vital controversy or dispute.
He says the trial judge failed to identify the Principal Secretaries in office illegally for lacking a recommendation from PSC and approval by the National Assembly.
