President Uhuru Kenyatta’s move to co-opt Nairobi Metropolitan Services (NMS) Director-General Mohammed Badi into the Cabinet has elicited varied reactions among leaders and constitutional experts.
Some termed the move unconstitutional and an assault on the supreme law.
Maj-Gen Mohammed Badi yesterday subscribed to the Oath of Secrecy, a requirement of all persons who attend Cabinet meetings or take part in the conduct of Cabinet business.
This means the Director-General shall henceforth attend all meetings of Cabinet and its committees, pursuant to Executive Order No3 of 2020. “The ceremony conducted by the Head of the Public Service was a precursor to the Cabinet meeting held at State House, Nairobi, yesterday,” read a statement by Statehouse Spokesperson Kanze Dena-Mararo.
The move is the latest by the President to back operations of NMS amid a power struggle with Nairobi Governor Mike Sonko. The committees Badi will attend include the Development Implementation and Communication Committee mandated to supervise the execution of government programmes and chaired by Interior Cabinet Secretary Fred Matiang’i.
Badi reports directly to Uhuru, since NMS is under an Executive Office of the President. He is among more than a dozen officials from the military who have been brought to the civil service to help in running affairs. Solicitor General Ken Ogeto said there was nothing illegal in Uhuru’s move, arguing that the President was allowed, in law, to invite anyone to the Cabinet to help in one way or the other.
“He (Badi) is not a Cabinet Secretary, and for your information, I can attend Cabinet meetings as long as I am co-opted. There is nothing illegal in it,” he said.
He added that NMS was under the Presidency, giving the President the freedom to invite Badi to attend Cabinet meetings. “Who said a military man cannot attend such a meeting? He is a Kenyan and the President is allowed to invite anyone to the Cabinet,” he said.
Lawyer Ahmednasir Abdullahi said: “I have carefully read this Press statement. Uhuru just wants one more clerk to help Kinyua take notes, and is thus within his presidential powers”. Joseph Kinyua is the Head of Public Service.
A former member of the defunct Committee of Experts on the Constitution Bobbi Mkangi said the Cabinet can co-opt and invite other people. He, however, questioned the permanent co-option of Badi, which could imply expanding the Cabinet.
Mr Mkangi said the decision by the President might have been geared towards repairing mischief since there were questions around the legality of NMS. “There have been concerns that NMS was an amorphous body. There were those who were asking whether it was anchored as a State corporation. The President could have thought it fit to anchor it somewhere,” said Mkangi.
He said NMS would now be in the Cabinet office, which raises concerns on the status of Nairobi City County after the transfer of four core functions.
“There could be legal implications. Questions arise on the spirit and intent of the Constitution, and if the move subverts the same, since Nairobi County is independent,” he said.
Lawyer Ndegwa Njiru faulted the move, saying the President had chosen to suspend the Constitution. “The President has taken over the Legislature and become the lawmaker, which is not premised in law. He has abrogated the Constitution by extending his Cabinet by co-opting NMS, a disputed entity,” he said.
Njiru added that the Executive Order was illegal. “In legal terms, it is a decree, which is used when the legislative function of Parliament has been suspended. Where is the President getting powers to circumvent and usurp the powers of Parliament,” he posed.
State House ceremony
Badi was named the NMS boss last February 25, in a ceremony at State House, which saw a number of the county functions moved to the new entity. The affected functions include county health services, transport services, Public Works, Utilities and Ancillary services and County Government Planning and Development. Since then, there has been a push and pull between NMS and the governor over who should supervise roles.
In the financial year 2020/2021, NMS was allocated Sh26.4 billion. The standoff between the two started in April when Sonko publicly protested NMS’ decision carried out by the Public Service Commission to second 6,052 county staff. What followed was Sonko’s decision to reject the Supplementary Appropriation Bill that was to allocate NMS Sh15 billion. The governor had argued that the County Assembly of Nairobi had allocated funds to functions that had not been transferred to the national government. Despite the Bill being gazetted, the Government Printer went ahead and revoked it after an advisory from the Solicitor General.
However, the county assembly passed a new Supplementary Appropriation Bill allocating Sh3.5 billion to NMS.
This led to Sonko registering his intention to end the agreement between the Nairobi County and the National Government to run some of the functions of the city.
Sonko wrote to the Attorney General on July 24 and expressed his intention to terminate the Deed of Transfer of Functions, citing patent illegalities in the deal. The letter was copied to the Devolution Cabinet Secretary Eugene Wamalwa and Badi.
The governor argued that there was neither consultation regarding the affected departments nor co-operation from the national government prior to the execution of the deed in contravention of Section 4 of the Intergovernmental Relations Act.
Nzamba Kitonga, who chaired the defunct Committee of Experts, said yesterday’s move would lead to controversy. “A general is not a CS and cannot sit in Cabinet. It also affects the structure of command, as his boss is the Chief of Defence forces and not subject to civilian authority,” he said.
Law Society of Kenya President Nelson Havi said anybody who is not a CS or expressly stated in the Constitution to sit in the Cabinet cannot do so.
“In as much as the President is the appointing authority, that power is subject to the oversight of Parliament and for that alone, Badi cannot sit in Cabinet. Badi is an officer of the national security forces. You cannot appoint such an officer to sit in Cabinet.
The President, he said, ought to have asked Badi to resign as a general, appoint him as a CS and forward his name to Parliament for vetting. Lawyer Steve Ogolla echoed Njiru’s sentiments, saying a uniformed officer should not sit in the Cabinet.
He said what the President did was to alter the structure of the national and county government by expanding the Cabinet and taking over the four critical functions of the county government.
“This is a civilian government. The move is illegal. NMS was a special purposes vehicle to handle transferred functions and not a constitutional entity. Expanding the Executive to accommodate political interests is illegal,” said Mr Ogolla.
“The government will be hard-pressed to explain the creation of a permanent seat in the Cabinet for an officer. This was not anticipated in law,” he said.
He argued that if the DG becomes a minister, it will complicate the reporting lines, where the Devolution CS is supporting the link between him, the Cabinet and the President.
Lawyer Katwa Kigen also faulted the development.
“The addition of the NMS boss to the Cabinet borders on militarising the Executive and the Cabinet. Secondly, it offends the intention in the law of what Cabinet is as being composed of CSs, President, Deputy President and Attorney General. One wonders why the President wouldn’t just have appointed him a CS instead of creating a pseudo CS,” he said. [Roseline Obala, Kamau Muthoni and Cyrus Ombati]