A legal showdown is looming between the ruling Kenya Kwanza Alliance and Azimio la Umoja One Kenya following President William Ruto's decision to allow 'strangers' to sit in the Cabinet.
On Tuesday, the President gave the go-ahead for UDA Secretary General Cleophas Malala, advisors Monica Juma (National Security), David Ndii (Economy) and Harriette Chiggai (Women rights), to sit in the country's top decision-making organ.
“In line with getting women issues at the centre of his administration, President Ruto cleared the Advisor on Women Rights Harriette Chiggai to attend the meeting,” read a statement from State House.
The move, which is a return to practice started by his predecessor Uhuru Kenyatta, now brings the number of persons sitting in Cabinet to 30. The development has elicited mixed reactions with questions abounding on the legality of the same.
According to Article 152 of the Constitution, the Cabinet should comprised the President, the Deputy President, the Attorney-General and not fewer than 14 and not more than 22 Cabinet Secretaries.
Prior to the communication, the Cabinet comprised 26 members: 22 Cabinet Secretaries sworn into office in October, the Attorney General Justin Muturi, Secretary to the Cabinet Mercy Wanjau, the Head of State and his deputy.
The President's decision to allow 'strangers' to sit in Cabinet could portend serious legal consequences if a precedent ruling by Justice Anthony Mrima is anything to go by.
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Interestingly, some leaders in Ruto’s Cabinet had condemned President Kenyatta for allowing Nairobi Metropolitan Service Director General Mohamed Badi to sit in his Cabinet.
During the State House meeting on Tuesday, Water CS Alice Wahome, who lodged the case in court when she served as Kandara MP, sat with the "strangers" she was opposed to.
In her case against Uhuru, Wahome argued that Badi was introduced into the Cabinet without following the process outlined in the Constitution.
Uhuru had invoked Executive Order No. 3 of 2020. The judge, however, found that the Constitution does not give powers to the President to choose other persons to attend Cabinet meetings.
He also dismissed Attorney General Kariuki Kihara’s argument that the Constitution gave Uhuru a leeway.
“I find the interpretation by the Respondents legally untenable, too far-fetched and not in tandem with the aspirations of Kenyans. If Kenyans had wanted to credit the President with the discretion to appoint any other person or persons into the Cabinet, I believe the Kenyans would have expressly stated so in the constitution,” ruled Mrima.
The judge also pointed out that Badi’s appointment was not sanctioned by Parliament.
“The term of office of the third respondent in the Cabinet also remains an illusion. The retention of the third respondent into the Cabinet no doubt raises far too many unanswered questions,” he ruled.
Senior counsel Ahmednasir Abdullahi was among the first to question Ruto’s decision.
“Did the Hon Attorney General JB Muturi or CS Alice Wahome bring to the attention of HE William Ruto this judgment of the High Court that prohibits (sic) strangers to eavesdrop on meetings of the Cabinet?" he tweeted.