President Uhuru Kenyatta has received yet another blow in court after a judge quashed his decision to co-opt Nairobi Metropolitan Services (NMS) Director-General Mohamed Badi into the Cabinet.
Justice Anthony Mrima declared that the President's decision was in contravention of the Constitution, illegal and void 'ab initio' (from the beginning).
While ruling on a petition filed by Kandara MP Alice Wahome, an ally-turned foe of President Kenyatta, the judge also issued an order of prohibition barring Major-General Badi from attending any Cabinet and Cabinet Committee meetings, or discharging any functions of the Cabinet.
Ms Wahome contended that by appointing the military general, the President allowed a stranger to sit at the country’s top decision making organ and bypassed the Constitution in inviting him to Cabinet meetings.
Major-General Badi was allowed to attend Cabinet meetings pursuant to Executive Order No. 3 of 2020 and after taking an oath of secrecy at State House Nairobi in September last year.
However, the court ruled that the basis of the decision to include him in the Cabinet is not clear and is questionable.
"His position, role and mandate in the Cabinet is unknown or at least the respondents (Attorney-General, Secretary to the Cabinet and Major-General Badi) chose not to disclose as much. It seems like the decision is masked in secrecy and therefore lacks transparency," said the judge.
The judge noted that there is no doubt that the appointment was not approved by the National Assembly. As such, it is unclear by whom and how the Major General’s work will be overseen.
His term of office in the Cabinet also remain an illusion, said the judge.
"His retention into the Cabinet no doubt raises far too many unanswered questions. For instance, one may ask why Major-General Badi and yet there are so many director-generals or heads of public institutions in the country?"
The court held that such questions and many others would have easily been answered had the appointment process been transparent and based on clear provisions of the Constitution and the law.
While referring to Article 132 of the Constitution - on functions of the President - the judge said this article does not accord the office holder powers to appoint anyone into the Cabinet.
Justice Mrima also referred to Article 152(1) on the composition of the Cabinet, which says the Cabinet consists of the President, Deputy President, Attorney-General and not fewer than 14 or more than 21 Cabinet secretaries.
"The provision did not leave any room for discretion in respect of the composition of the Cabinet. In fact, the composition of the Cabinet is ring-fenced and insulated to consist of only the President, the Deputy President, the Attorney-General and Cabinet secretaries," stated Justice Mrima.
"I cannot imagine any manner of interpretation of the entire Constitution that will infuse discretion into the composition of the Cabinet on the part of the President," he added.
The court found the interpretation offered by the Attorney-General to be "untenable, too far-fetched and not in tandem with aspirations of Kenyans".
The respondents, while relying on Article 132(2), had stated that the President has a Constitutional duty to direct and coordinate the functions of ministries and government departments.
In doing so, they stated, the President may invite persons other than the members of the Cabinet to attend Cabinet meetings.
Further, it was argued that Article 132(4) of the Constitution, which provides that the President may perform any other executive function provided for in the Constitution or national legislation, yielded the President to the discretion to require the attendance of any person in Cabinet meetings.
They also submitted that granting the orders sought by Ms Wahome would constitute a usurpation of the Executive's constitutional roles and prerogatives, contrary to the principle of separation of powers.
