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Lobbying saves transferred Kenyan principal secretaries, ministers from fresh vetting

By Alphonce Shiundu | December 6th 2015
National Assembly Speaker Justine Muturi speaks at Friends Church Buruburu during a fundraising where he was the guest of honor 15/11/15 [PHOTO/MOSES OMUSULA/STANDARD]

A fiery legal opinion from Attorney General Githu Muigai, a personal visit to the Speaker by Solicitor General Njee Muturi and dozens of late-night phone calls to Majority Leader Aden Duale, saved transferred ministers and principal secretaries from fresh vetting.

In candid interviews with Jubilee-allied MPs —all done on condition of anonymity— The Standard on Sunday has pieced together details of the official and political effort whose main aim was to shield the President from possible embarrassment.

As soon as MPs began demanding that all those the President had nominated be vetted for suitability, pressure began mounting on the parliamentary leadership.

Njee was seen in the Speaker’s office on Wednesday morning. “Many of us did not sleep. The calls were too many,” an MP admitted.

Those calling were pegging their argument on the Constitution and they managed to convince everyone that the supreme law was on their side. They wanted Speaker Justin Muturi to re-affirm the superiority of the Constitution on the presidential powers to re-assign Cabinet Secretaries and Principal Secretaries,” said an MP.

“If these people had been vetted afresh, none would have made it and that would have been a big embarrassment to the boss,” added another Jubilee lawmaker.

Illegal move

In his letter, the AG was categorical that fresh vetting for transferred Cabinet Secretaries Najib Balala (Tourism), Fred Matiang’i (Education), Jacob Kaimenyi (Lands), James Macharia (Health) and a handful of principal secretaries, including the new one for Foreign Affairs, Monica Juma, and the incoming one for Interior, Karanja Kibicho, was illegal. “It is our considered view that the re-assignment of responsibilities by the President of Cabinet and principal secretaries from one portfolio (within the designated office for which one is appointed) to another is a constitutional power that cannot be fettered by legislation. Consequently, any attempt to re-approve the President’s nominees who have been re-assigned from one portfolio to another would be manifestly unconstitutional,” the AG said.

The Speaker toed the line and said the Constitution was superior. According to Samuel Chepkonga (Ainabkoi), the chairman the Justice and Legal Affairs Committee in the National Assembly, the vetting law was subservient to the Constitution.

As per the law

“The Constitution gives the President that power. Article 152(5) says ‘the President may reassign a Cabinet Secretary’. Article 155 says ‘President may re-assign a Principal Secretary’. So really there’s nothing. If the terms of these CSs would have expired, then they would have had an argument, but not on re-assignment,” he told The Standard on Sunday.

He said once someone has been vetted to a leadership position, then they were eligible to serve in any ministry. “Leadership is about ideas and people skills. It is not about technical expertise; that is for technocrats. If a Cabinet Secretary was found suitable in one ministry, then they can serve in any other ministry,” said Chepkonga in an interview.

Opposition MPs have bitterly disagreed with Muturi’s ruling exempting transferred Cabinet Secretaries from fresh vetting. They say, the ruling was illegal as it ran counter to the constitutional spirit giving MPs the power to judge the suitability of the ministers to serve in different dockets in government. Deputy Minority Leader Jakoyo Midiwo (Gem), the Deputy Minority Whip Chris Wamalwa (Kiminini), and Ababu Namwamba (Budalang’i) said the ruling violated the vetting law.

“This is impunity. The law is clear, if someone has been vetted for a particular job, and they are reassigned, their suitability for the new duties has to be assessed,” said Midiwo.

The Public Appointments (Parliamentary Approval) Act defines a presidential “appointment” to include “any re-appointment to the same body, whether or not in the same capacity.”

It obligates the President to submit to the National Assembly the names for the nominees in case he makes any changes to his Cabinet or government, especially when the law requires that the holders of these offices be vetted for their suitability to serve.

“There’s a ruling of the Speaker that says any re-appointment either in the same or different capacity amounts to a new appointment. The law is also very clear. I don’t see why not all the names were submitted to the National Assembly,” said Namwamba.

Only seven names of Cabinet nominees and 24 for principal secretaries were submitted for approval. Wamalwa said they will push the President to submit all the names of the Cabinet Secretaries with new duties or else, they will head to court to challenge the appointments and render the new nominees jobless.

“When we vetted (Prof Jacob) Kaimenyi for his suitability to serve as Education Cabinet Secretaries, his record as a former deputy vice chancellor came in handy. And that is why we approved him. What credentials does he have to serve in the Lands ministry? We don’t know. And that is why he has to be vetted afresh,” said Wamalwa.

But Duale and Chepkonga said the President had the power to re-assign State officers. Duale said: “The law is clear. These people were not coming in afresh. They were found fit to serve in Cabinet.”

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