What judges said about position of CAS after 50 were sent packing

A section of CAS appointees follow proceedings at a Milimani Court during the reading of a judgement on their appointment. [Collins Kweyu, Standard]

Public Service Commission’s (PSC) failure to file a reply in the case challenging the constitutionality of position of Cabinet Administrative Secretary (CAS) spelt doom for the 50 nominees who were one step away from the office.

PSC’s reluctance to involve the Salaries and Remuneration Commission (SRC) was also cited.

National Assembly Speaker Moses Wetang’ula’s letter stating that MPs could not vet the nominees was the final nail in the coffin of the 50 CAS nominees. 

Two High Court judges Kanyi Kimondo and Aleem Visram agreed that the position of the CAS is unconstitutional.

The judges were of the view that the position of a CAS lies between that of the Cabinet Secretary and Principal Secretary, therefore, they could not assume office without vetting and approval by the National Assembly.

“Whereas the president has powers to create an office, such approval has to be done by Parliament,” the majority judges ruled.

They observed that although the Court of Appeal had suspended the implementation of initial High Court orders that had found that President Uhuru Kenyatta’s appointment of CASs was unconstitutional, the orders by Justice Anthony Mrima are still active to date.

According to Justice Kimondo and Visram, the current position of the CAS is unconstitutional for the PSC’s failure to involve SRC and Parliament.

“Current office of the CAS and contained in the gazette notice and which announced the vacancies thereof is unconstitutional. We are satisfied that the newly created position of the CASs does not meet the Constitutional threshold,” Justices Kimondo and Visram ruled.

The two judges held a different view from that of Employment and Labour Relations Court (ELRC) judge Monicah Mbaru.

According to the majority judges, although LSK did not appeal Justice Mbaru’s verdict, they stuck with their colleague Justice Mrima’s verdict adding that the judge relied on the Court of Appeal’s temporary order to decide on the PSC’s advert for the new position.

They asserted that the Court of Appeal orders only dealt with the implementation of Justice Mrima’s orders, and not the substance of the battle between Busia Okiya Omtatah and the Jubilee administration.

Justice Kanyi and Visram were of the view that Mrima’s verdict still stands and has not been impeached.

They held that the former constitution gave the president to create the cabinet, and this included the position of an assistant minister. However, according to them, following extensive debate and considerations by Kenyans, the position of an assistant minister was abolished in the 2010 Constitution.

Justice Kanyi and Visram stated that the CASs positions as advertised by PSC, mirrored that the position of an assistant minister which Kenyans had done away with.

“It is thus not surprising that the size of Cabinet Secretaries is capped at 22. It is therefore our considered view that the creation of a similar office to the assistant minister now in the name CASs cannot be created in the manner the first respondent and fifth respondent proceeded,” the two judges argued.

They were unanimous that the extra 27 positions created by President William Ruto were unconstitutional.

However, in a dissenting judgment, Justice Hedwig Ong’udi backed Justice Mbaru that there was a justification for the creation of the position.

According to her, the position was created based on the verdict of the Labour Court. She stated that PSC only acted after winning the case filed by LSK. She observed that the society did not appeal the verdict.

“It is worthy to note that the decision was stayed by the Court of Appeal and the matter will inevitably affect the outcome of the position of a CAS. On the other hand, the decision of the CAS by Justice Mbaru was the basis of the formation of the CAS,” she said adding that although the order from that court is not binding, the government established the office with the blessings of the court.

“This cannot be ignored,” she said.

Justice Ongúdi however agreed that the extra positions were created without public participation and consultation.

In the case, Attorney General Justine Muturi defended President Ruto’s decision to appoint 50 CASs. 

Muturi in his submissions stated that although the main concern was the cost of the officials in government, the PSC and Parliament had not informed the Executive that taxpayers could not shoulder the cost of the nominees being in office.

He maintained that Ruto followed the law as he acted on the recommendations of the PSC to appoint extra hands in government.

According to Muturi, the court cannot question the issue of expenditure, since that responsibility is within the purview of Parliament.

He claimed that the High Court has no powers to hear the four cases as the Labour Court had already found that they revolve around a labour dispute. Muturi’s argument was similar to that of the head of Public Service Felix Koskei who claimed that the role of a CAS was to supplement the government’s bottom-up agenda.

“It is not in dispute that he appointed the interested parties in accordance with the recommendations of the Public Service Commission,” argued Muturi.

Koskei claimed that he asked his counterpart from Treasury Chris Kiptoo whether there was money to cater for the 50 CASs, and the answer was in the affirmative.

The correspondence between Koskei and Kiptoo that are before court however contradict Deputy President Rigathi Gachagua’s public statements that the Kenya Kwanza government found empty coffers.

“I am informed by Treasury Principal Secretary which information I verily believe to be true that the PSC wrote to the National Treasury seeking concurrence on the availability of funds to meet the resultant expenditure of additional employment of CASs. He (Kiptoo) had no objection,” claimed Koskei.