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Attorney-General, PSC race to save Ruto advisers
Attorney-General Dorcas Oduor.
The attorney-general and the Public Service Commission (PSC) have rushed to the Court of Appeal after the High Court declined to suspend a judgment that nullified the offices of President William Ruto’s advisers, exposing the appointees to immediate loss of office.
The High Court not only struck down the creation of the advisory posts but also rejected repeated requests by State counsels Thande Kuria and Betty Mwasao to stay implementation of the decision pending filing of an appeal.
The court said it could not stay its finding of unconstitutionality, forcing the State to pursue appellate relief as its only remaining option.
This decision left the 21 advisers, including David Ndii (Economic Council) and Prof. Makau Mutua (Constitutional Advisor), exposed to immediate removal and loss of salaries.
Two separate notices of appeal filed on Friday in Nairobi show that both the attorney -general and the PSC are challenging the entire 48-page ruling.
They want the Court of Appeal to suspend the judgement pending the appeal's determination, and eventually reverse findings that declared the appointments unconstitutional.
The AG’s notice was filed by Principal State Counsel Betty Mwasao, and PSC’s by Principal Legal Officer Wycliffe Odukenya.
As part of the judgment’s implementation, the PSC, together with the Salaries and Remuneration Commission (SRC) and their officers, are required to stop recognising, facilitating, or effecting any payments to the 21 appointees pursuant to their appointments to the unconstitutional offices.
The PSC is also required to conduct and complete, within 90 days, a comprehensive audit of all offices established for the Executive Office of the President since the 2010 Constitution. It was directed to particularly focus on those created after August 2022 to assess compliance with Article 132(4)(a) of the Constitution and the PSC Act.
Active judicial supervision
Based on the audit, the PSC must initiate the process of abolishing any unconstitutionally created offices and file a progress report in court within 120 days of the judgment.
The continuing reporting obligation places the commission under active judicial supervision and is designed to ensure sustained enforcement of constitutional limits on presidential power.
The dispute arose from two petitions filed by Katiba Institute and rights advocate Soyinka Lempaa, who argued that the President unlawfully created and filled advisory offices without following mandatory constitutional and statutory procedures.
At the heart of the case is Article 132(4)(a) of the Constitution, which allows the President to establish offices in the public service, but only “in accordance with the recommendation of the PSC”.
The High Court held that this phrase was not decorative language but a deliberate constitutional check on presidential power.
“The constitutional requirement for the President to act in accordance with the recommendation of the PSC is a deliberate check on executive power,” the judge ruled, adding that a recommendation must be substantive and independent.
After analysing correspondence between the Presidency and the PSC, the court found a consistent pattern where specific individuals were identified first, with the Commission later asked to approve both the office and the appointment.
“That puts the cart before the horse,” the judgment stated, concluding that the PSC had been reduced to endorsing pre-determined outcomes.
The court found no evidence of internal deliberations by the commission, such as minutes or analytical reports, showing that it had assessed workload, duplication, or fiscal impact before approving the posts.
It further held that the process violated Sections 27 and 30 of the Public Service Commission Act, which require detailed justification before any new public office is created.
The request letters, the court found, lacked workload analysis, financial implications, and the mandatory verification statement required by law.
“This omission is not minor,” the judge said, describing it as a direct contravention of statutory provisions that operationalize constitutional values.
On public participation, the State argued that advisers were internal staff whose appointment did not require public input.
The court rejected that position, holding that the creation of multiple senior, publicly funded offices within the Presidency was a matter of high governance and public interest.
The judgment also faulted the absence of fair competition and transparency, noting that the positions were never advertised and were filled through direct nomination.
The court described the process as “handpicking,” warning that it resurrected a pre-2010 culture the new Constitution was designed to dismantle.
On public finance, Justice Bahati Mwamuye held that creating an open-ended number of high-ranking advisors without fiscal analysis violated the principle of prudent use of public funds under Article 201.
The court orders effectively repositioned the PSC as an active constitutional gatekeeper, requiring it to police the boundaries of presidential power rather than legitimize decisions already made.
Although the court dismissed the claim against the Salaries and Remuneration Commission for lack of a specific cause of action, it still criticised the failure to obtain SRC input on the financial implications of the posts.
The court further found violations of the right to access information and fair administrative action, citing secrecy around the number, cost, and functions of the advisory offices.
Having reached those conclusions, the High Court quashed the creation of the offices and the appointments and declined to stay its orders.
That refusal has now triggered the appeal, signaling the State’s intention to defend the President’s authority to organize advisory support within the Executive Office.
The appeal is expected to test whether the High Court imposed too strict a standard on presidential discretion or correctly enforced constitutional guardrails.
Beyond the fate of the advisors, the case carries far-reaching implications for presidential power under the 2010 Constitution.
If upheld, the ruling would significantly limit the ability of future Presidents to create advisory roles without rigorous oversight.
If overturned, it could restore broader executive latitude in structuring the Presidency.
For now, the advisers’ positions hang in the balance as the Court of Appeal prepares to weigh the reach of executive power against constitutional restraint.
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