Crosshairs on Musalia Mudavadi: Why ruling on CASs threatens Prime Cabinet Secretary role

But he did play a central role in another high-profile ruling last Friday (June 30), when the High Court suspended implementation of the Finance Act 2023, pending the hearing and determination of a petition he filed alongside six other activists.

Omtatah has quickly emerged as a people’s defender, and since the ruling on the CAS positions delivered on Monday by judges Kanyi Kimondo, Hedwig Ong’udi and Aleem Visram, his phone has been ringing off the hook.  Pressure is now being exerted on him “to do something about other unconstitutional offices” such as that of the Prime Cabinet Secretary, occupied by seasoned politician Musalia Mudavadi, and those of the spouses of the Prime CS and Deputy President – all funded by taxpayers’ money.

Cost of living

Omtatah has his hands full for now, however. “I am glad about the people’s response and their trust in me. However, at the moment, I want to concentrate on their case against the high cost of living. This is crucial for all Kenyans.” Fellow legislators and even lawyers continue to reach out to the senator, asking to team up with him in pursuing fresh “pro-people cases”. Curiously, despite his litigious nature, Omtatah is neither schooled in law nor a licensed lawyer.  “I have been calling him for two days now so that I can share some crucial information with him or even get enjoined in some of his ongoing cases, but he is either too busy to pick my call or is not interested altogether. As you know, Omtatah is now a politician and politicians are generally slippery – I just hope he will not eventually slide into their typical mess,” a senior Nairobi-based constitutional lawyer told The Weekly Review with a chuckle.   

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The development on the legal status of the CAS positions appears to have given members of the political class allied to the opposition Azimio la Umoja-One Kenya coalition, who have particularly been critical of the Office of Prime Cabinet Secretary, impetus to launch fresh attacks.

The protests were stronger and louder in October last year, before Mudavadi was vetted by the National Assembly for the position. Then, the House’s Leader of the Minority, Opiyo Wandayi, stoked controversy by stating that “such a position is alien to the Constitution and can’t be considered as part of the Cabinet”.

On Thursday, however, Azimio, through Paul Mwangi, who is a personal lawyer of party leader Raila Odinga, showed no enthusiasm in pursuing the matter legally: “We are not interested in this one. However, I will consult with coalition authorities for direction before reverting to you,” the constitutional lawyer told this writer.         

But others like Harun Ndubi are determined to trudge on to ensure that the constitutional question around public offices established by President William Ruto is addressed with finality.

Even as he picks up the gauntlet, the lawyer opines that the 13th Parliament is guilty of failing to exercise separation of powers by going to bed with the Executive, and should accordingly be disbanded.  

Being married to the Deputy President or Prime CS, he argues, does not guarantee one an official office financed by taxpayers’ money. How the MPs cannot interrogate and correct such a “simple” wrong policy is something he cannot comprehend: “Clearly, the problem at hand emanates from a legislative arm that has elected to be cheerleaders of the Executive instead of playing an oversight role. Some of these anomalies could have been arrested by relevant house committees at the vetting stage.” 

Article 152 of Chapter 9 of the Constitution on the Executive lists the President, Deputy President, Attorney-General and not fewer than 14 and not more than 22 Cabinet Secretaries. Subsection (2) of the same states that, “the President shall nominate and, with the approval of the National Assembly, appoint Cabinet Secretaries”.

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The current occupant of the Prime CS’s office, for all practical reasons, is one of the 22 CSs who were nominated by the President for vetting last October and like political analyst Dr Henry Wabwire weighs in, the only difference is in the wording and titling of dockets, in this case the use of the word “Prime”.

The same Constitution gives the President leeway to name, assign or re-assign members of his Cabinet dockets and roles that he deems appropriate. Any case against the holder of the office of the Prime CS, according to Dr Wabwire, falls flat on this account alone.

Perhaps the only confusion – and one that has attracted the interest of opposition figures like Wandayi – is the President’s assertion that the holder of this office is “the third most powerful officer in the Executive after the President and Deputy President”. 

Contrary to work-related roles, the governance expert argues that the “Prime” in Mudavadi’s title is a political and not a governmental title, meant to appeal to the political equation within the Kenya Kwanza brigade. Ideally, this arrangement captures the power structure of Dr Ruto’s team. 

In the event that the ruling on the positions of CAS – though not conclusive since the Attorney-General, Justin Muturi, has already filed a petition – inspires some to petition against the Office of Prime CS, a disbandment of the office by the courts would have dire political consequences, not just for Kenya Kwanza Alliance but for all political players in the years to come.

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If the President’s powers are curtailed on creation of Cabinet offices and listing of ministries, the move would highly complicate future coalition pacts, including in 2027 – just four years away. 

Under the current political arrangement, a successful petition against the office would totally change the political map within KKA and in the country, where the influence of Mudavadi’s office could either be watered down by the courts or it could be disbanded.

It would also influence perceptions and numbers in the Western Kenya region, and by extension also weaken the Kenya Kwanza coalition’s influence in the region. But more importantly, it would disorganise the President’s 2027 re-election bid.

The highly competitive nature of presidential polls since the reintroduction of multiparty politics in 1992 has gradually persuaded political competitors to coalesce around two major formations.

This arrangement, involving many key players, has naturally triggered a   clamour for the position of premiership aimed at accommodating more political leaders in government.  The premiership is technically a campaign negotiation slot to be dished out to the third highest ranked political player in a given formation.

Ahead of last year’s elections, the positions were reserved for former vice-presidents Mudavadi and Kalonzo Musyoka in Kenya Kwanza and Azimio respectively.

Although Mudavadi is referred to as Prime CS, or Chief Cabinet Secretary as Odinga had designated the title for Musyoka, the title – by whatever name – is meant to imply the position of Prime Minister. It is only not stated plainly that way because of legal implications.

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Odinga and former President, Uhuru Kenyatta, who unsuccessfully promoted the Building Bridges Initiative (BBI) during the last Parliament, had hoped to have the office legally in place by the time of going to the polls last August. The duo envisaged a scenario where the PM’s position would help achieve national cohesion and inclusivity in government.

They argued that the extra positions of PM and two deputies would expand the Executive and thereby accommodate more people at the top leadership of government. But the plot was dealt a major blow by the courts, which declared the process, via popular initiative, as driven unconstitutionally.  

To date, only two individuals – Jomo Kenyatta and Odinga – have served as Prime Ministers of Kenya, in substantive capacity. Kenyatta Senior was sworn in on June 1, 1963, after Kenya won internal self-rule and served for one year while Odinga, who was sworn in on April 17, 2008, served for five years.

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Odinga became Premier in a Grand Coalition Government with President Mwai Kibaki, in a power-sharing agreement brokered by the late Dr Kofi Annan, former Secretary-General of the United Nations, following a highly disputed and discredited poll that triggered post-election violence.  

And akin to the National Accord and Reconciliation Act (2008) that assigned immediate former PM Odinga the “authority to co-ordinate and supervise the execution of the functions and affairs of the Government, including those of Ministries”, subsequent posts caricatured around the PM’s office have similarly fashioned their roles around “coordination and supervision of government functions and ministries”.

Unveiling his Cabinet on September 27 last year, for instance, President Ruto fashioned Mudavadi’s roles around the National Accord, stating that his duties entailed assisting the President and Deputy President in “coordinating and supervising Government Ministries and State Departments”.