Ruto's decision on Cabinet will cost Kenya millions of shillings

President William Ruto congratulates the new CS for Trade and Industry Moses Kuria after he was sworn in at State House on October 27, 2022. [PCS, Standard]

The old constitution exhibited both presidential and parliamentary systems of governance. As such, members of the Cabinet were elected members of Parliament.

The system in a way compromised the doctrine of separation of powers that is traditionally known to provide for three arms of government, with each providing check and balances on the others.

This counterbalance is necessary to prevent any one arm of government from usurping the powers of the others. Despite the new Constitution providing a presidential system with clear separation of powers, it has a whole chapter on public finance with clear values and principles of public finance.

They include openness and accountability, public participation, and fair sharing of taxation burden. The revenue raised nationally, as per the constitutional dictate, must be distributed equitably between the national and county governments.

The principles further oblige government expenditure that promotes equitable development with clear and special provision for marginalized groups. On the burdens and benefits of the use of resources and public borrowing, it is incumbent on those charged with governance to ensure resources are shared equitably between present and future generations.

The drafters of the Constitution were always aware that underdevelopment was caused by wrong priorities, imprudent and irresponsible use of public finances and therefore provided these biding majestic generalities on all public officers any time they manage public finances.

The principles also enjoin anyone dealing in public finances to be responsible and provide clear fiscal reporting mechanisms. Although the Constitution is clear on this, human nature is that politicians would exploit any gap in the law to defeat public good.

Reading these principles that are well thought through, one would wonder why three MPs were appointed to the Cabinet immediately after the general election, occasioning by-elections in the respective electoral units that cost taxpayers millions of shillings.

The president's coalition also sponsored Moses Wetangula to vie for the seat of Speaker of the National Assembly, immediately after he won the senatorial seat. The natural and political consequences of this are that IEBC has no option but to organise by-elections in these areas.

At the same time, the Executive is complaining about inheriting empty coffers from the national treasury. It is estimated that a by-election in a county like Bungoma can cost up to Sh300 million.

Although there is no express law that bars the president from appointing MPs to the Cabinet just after elections, if the president strictly adhered to the letter and the spirit of the Constitution, he would be guided by principles of public finance and prudent and responsible use of the little they inherited from the empty coffers at the Treasury.

By considering the cost of by-elections, the president would appoint persons other than sitting MPs. That way, he would demonstrate tremendous respect to the Constitution, uphold and safeguard it. Running a state is about managing scarce resources to improve the quality of citizens' lives

The IEBC organised four by-elections, two at a constituency level and two at the county level. This came hot on the heels of the August general election that cost billions.

The amount spent in by-election would have been channelled to finance other pressing issues like alleviating hunger in parts of the country, financing development, or recurrent expenditure.

This would pass as prudent and responsible use of public money. In any case, there are enough people eminently qualified both professionally and politically to be appointed and avert unnecessary wastage of public resources in by-elections.

If broad construction of the constitution to avoid wastage is a problem, it can be done by amending the Elections Act to bar the president from appointing people who have been declared winners in elections as Cabinet secretaries.

The law should also bar any person declared as a winner in an election from being appointed to any other State office like the office of the Speaker. Giving politicians the discretion to favourably interpret the Constitution and limit their powers is expecting too much from them.

-Mr Lempaa is an advocate of the High Court