Divergent views over new CAS created by President Uhuru

Politicians and lawyers are sharply divided over the legality of the newly created post of Cabinet Administrative Secretary (CAS).

Of concern is whether the CASs are civil servants picked by bypassing the required competitive recruitment process.

Some of the leaders have also questioned President Uhuru Kenyatta's mandate in creating positions in the public service, a role legally under the purview of the Public Service Commission (PSC).

In filling positions in the public service, PSC is required to advertise for the slots, shortlist candidates, and conduct interviews before finally submitting names for hiring. It is the same procedure for recruiting Principal Secretaries (PSs) since they are not vetted by Parliament.

Wage bill

It has further brought to the fore the sincerity of Uhuru’s administration on austerity measures and dealing with the country’s ballooning wage bill.

National Assembly Majority Leader Aden Duale, however, explained that the right procedure was followed since the President consulted the PSC.

Lawyers Apollo Mboya, Charles Kanjama and former commissioner at the defunct Commission for the Implementation of the Constitution (CIC) Catherine Mumma said it was the role of PSC to create positions in the public service.

“There is no constitutional basis for the creation of the positions. PSs are within the public service. It is PSC to recommend the names to the President after advertising and conducting interviews for the positions.

There was no advertisement for this new position. Any public service position must be competitive,” said Mumma.

She termed the position as an encroachment on the CS duties since their roles are not defined in the Constitution.

“Does the President have powers to create positions in the public service? The answer is no,” she added.

Similar sentiments were echoed by Mboya, who said the move was likely to attract legal challenge since it is not anchored in the Constitution.

He also alluded to possible conflict between the PSs and the CASs since there is no clear hierarchy on who should be reporting to the other.

National Assembly Minority Leader John Mbadi termed the move as the height of impunity, saying such position can only be created through an amendment.

“If you look at the Chapter on the Executive, we do not have such a position. What we have in the Constitution is the Cabinet Secretary and Principal Secretary positions,” said Mbadi.

“This is pure impunity, creating another layer in the Executive without any amendments to the Constitution. They are trying to create a bloated government. This new layer will have offices, budget and staff,” said Mbadi.

He said although NASA would not go to court to challenge the position since they did recognise Uhuru, there was likelihood that some Kenyans would challenge the move.

Illegal position

Lawyer Otiende Amollo, also Rarieda MP, said the creation of the position was against the Constitution.

He said the President had basically reintroduced an assistant minister’s position through the backdoor.

“The idea of limiting public position and abolishing assistant ministers was to do away with unnecessary bureaucracy that is costly to the government. Announcing this position above PS position is unlawfully reintroducing the position of assistant minister,” said Amollo.

National Assembly’s Justice and Legal Affairs Committee (JLAC) chairman William Cheptumo and Nairobi Senator Johnson Sakaja, however, defended the new positions as they would improve on service delivery.

The two leaders also said there was no violation of the Constitution since it was an administrative process that does not require any amendments.

“The intention is to enhance delivery and it cannot be unconstitutional because it is not provided for the Constitution,” said Cheptumo.

He said it was too early to talk about the job description since the President was yet to provide circular detailing their roles.

“There are many positions that are not in the Constitution. We saw how overwhelmed CSs were. The new position gives room for better coordination,” said Sakaja.