CAS positions not recognised by law: High Court
By Judah Ben-Hur
| April 20th 2021
The High Court has declared the position of Chief Administrative Officer (CAS) initiated in 2017 unconstitutional, dealing a heavy blow to President Uhuru Kenyatta's administration and political structure.
In the ruling made on Tuesday, April 20, Cabinet Secretaries who served under President Kenyatta in his first term, were also supposed to be vetted afresh for a second term in office.
The affected CSs include Fred Matiang’i (Interior), James Macharia (Transport), Joe Mucheru (ICT), Eugene Wamalwa (Devolution), Charles Keter (Energy) Raychelle Omamo (Foreign Affairs), Adan Mohamed, (East Africa Community), Sicily Kariuki (Water), Najib Balala (Tourism) and Amina Mohamed (Sports).
High Court Judge Antony Mrima directed the Attorney General to give a report in 30 days detailing the position of the CASs and Cabinet Secretaries in terms of gender and regional balance.
“The term of the President ends with the term of Cabinet. Those who served between 2013 and 2017 should have been re-vetted to join the Cabinet,” said Judge Mrima.
Katiba Institute had moved to court to challenge the legality of the position of CASs, which has been used by President Kenyatta to reward loyalists in the handshake with ODM leader Raila Odinga. The position first came to effect on January 26, 2018.
"Having consulted the constitutionally mandated body and receiving advice from service commission as required by article (132) (4A) of our constitution, I have decided to establish a new position in government, the position of Chief Administrative Secretary in all our ministries. The Chief Administrative Secretary would broadly be responsible for helping the Cabinet Secretary (CS) to better coordinate the running of the affairs of their respective ministries," said President Kenyatta.
The position came to effect after President Kenyatta is reported to have sought advice from then Public Service Commission Chair Prof Margaret Kobia, presently CS Public Service and Gender.
In his landmark ruling on Tuesday, the judge said “CAS position was created without public participation and engagement of other agencies like the Salaries and Remuneration Commission (SRC),” said the Judge.
Judge Mrima also gave Attorney General Kihara Karuiki 30 days to comply, stating that for the time being there will be no disruption because of the surge in Covid-19 cases until the end of the MOH protocols.
The latest appointment of CASs was on February 17, when the President appointed eight new CASs and reshuffled six CASs.
Some beneficiaries of the now unconstitutional office include Health CAS Mercy Mwangangi, former Nairobi County Assembly Speaker Beatrice Elachi, David Osiany, Eric Simiyu, Simon Kachapin, Zach Kinuthia, Jackson Musyoka, Prof Japheth Micheni, Zachary Ayieko and Noor Hassan.
Others include former MPs Patrick Ntutu, Rachel Shebesh, Gideon Mung’aro, Alex Mwiru, Linah Chebii, Ken Obura, former Governor Hussein Dado and Winnie Guchu among others.
The position was also claimed to be used to empower the youth.
In 2019, MPs were up in arms over Uhuru’s illegal appointments which split the National Assembly, claiming there was an overlap in the roles between the Cabinet Secretaries (CS), Principal Secretaries (PS) and CASs.
The matter was raised by Kimilili MP Didmus Barasa after he rejected a response from the Health Ministry by CAS Rashid Aman claiming he was not the right person to respond on the matter.
A number of MPs concurred with Didmus, registering their frustration that it was hard to question CASs on issues concerning their respective ministries since they could not be held to account for their decisions because their roles were not defined in the Constitution.
Former Majority leader Aden Duale did not come out strongly saying he was opting to wait for instructions from the Speaker on what he was to do in the situation. Instead, Duale said the CASs were doing a good job but whether they were going to appear before the parliamentary committee was a prerogative of the Speaker.
Minority leader John Mbadi also faulted creation of the office, which he termed unconstitutional though it was too late to remedy the situation. He said the president’s move was wrong but then it presented a challenge on how to address the situation.
“The horse has bolted and I don’t know how we are going to help it,” said Mbadi.
Kajiado South MP Katole Metito, who is also the defence committee chairperson, disagreed with members then, saying he had no problem with CASs sanctioned presence in chambers arguing that his only concern was subsequent questions on matters raised.
But he agreed with colleagues that the CASs were limited when it came to providing intimate information or making decisions. The then-National Assembly Majority leader stated that the CASs had statements signed by their respective CSs sanctioning their presence before the parliamentary committees, and should therefore be allowed to act on behalf of the ministers.
National Assembly Speaker Justin Muturi was to pronounce himself on the matter. Just like the National Assembly, the Senate has also had its fair share of trouble with the CASs, sometimes chasing them away and demanding the presence of the CS.
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