William Ruto's dilemma as he seeks to put out fires in courts, streets

A section of CAS at a Milimani court on July 03, 2023, during the reading of a judgement on their appointment. [Collins Kweyu, Standard]

With cases being filed rapidly against his Kenya Kwanza administration, President William Ruto’s government is expected to have a busy period in the courts as the opposition also continues mounting civil protests against his governance.

The cases - filed by politicians, civil society groups such as the Katiba Institute and backed by professional bodies among them the Law Society of Kenya (LSK) -  have rattled the president’s supporters.

Nandi Senator Samson Cherargei, a hawkish president’s wingman, is among many pro-government MPs who demanded to know why the courts ruled that appointing 50 Cabinet Assistant Secretaries (CASs) was unlawful.

He described the decision by the three-judge Bench as unfortunate because it allegedly puts in place a bad law that will set a bad precedent.

“The Judiciary that we have now is rogue and has been captured by cartels. I can qualify the statement because I have met so many Kenyans complaining,” says Cherargei.

The President has so far used his numbers to win contested battles in the legislature, although some Azimio coalition leaders have described the victories as pyrrhic, vowing to overturn them through courts and mass action.

The battle, however, is now in the Judiciary where the High Court has so far declared the appointment of 50 CAS unconstitutional.

President Ruto is also fighting a more challenging case filed by Busia Senator Okiya Omtatah and others that is seeking to stop the application of the Finance Act 2023 enacted into law two weeks ago after a heated debate in Parliament and among Kenyans countrywide.

The Act’s application has so far been suspended pending the hearing of the case whose consequences could cripple some functions of government although the Energy and Petroleum Regulatory Authority (EPRA) has revised prices upwards, thus applying the 16 per cent increment provided for in the suspended law.

Another case lodged against the government was filed by lawyer Charles Mugane challenging the swearing-in of four people he alleges should not sit in the Cabinet because they are strangers and also hold other public service portfolios.

Those said to be sitting illegally in Cabinet are the ruling UDA party Secretary-General Cleophas Malala and the President’s advisers David Ndii (Economy), Monica Juma (Security) and Harriette Chiggai (Women Rights).  The LSK, which filed the case against the 50 CASs, praised the courts for upholding the law and vowed to fight for the cause of justice against any appeals that may be filed by both government and the beneficiaries. 

Landmark decision

LSK President Erick Theuri hailed the judgment as a landmark decision, that affirms the supremacy of the Constitution, the Kenyan people and the independence of the Judiciary.

Ruto: I am not controlling Judiciary

“When an exercise is held through public participation and the overwhelming view of the citizens is that an office is unnecessary, then that should count for something,” said Theuri.

Mosop MP Abraham Kirwa, however, argues that a solution will have to be found to accommodate the CASs in other areas because the President appointed them for regional balance.

The MP noted that the President will be very careful in his next steps because he believes in the rule of law and will work with his legal advisers to satisfy the needs of all interested parties. “I know the mood in the country is that we don’t have money and many youths are unemployed, but the appointment or not of these 50 people will not have made any difference. All the President wanted was representation for every part of the country,” says Kirwa.

President William Ruto during a Cabinet meeting at State House Nairobi. [PCS]

Constitutional lawyer and governance expert Gibson Gisore, however, advises the President that as the government exercises its right of appeal, it should also be aware that superior courts will refer to the two previous judgments on the matter.

He was referring to the one rendered by a three judge Bench last week and an earlier one by Justice John Mativo, which again declared the 23 CASs appointed by President Uhuru Kenyatta unconstitutional although they remained in office after a stay order was obtained by the then Attorney General.

Devastating judgment

The earlier cases were filed by Omtatah and the Kenya National Human Rights Commission but were later consolidated before the devastating judgment was rendered in 2021. The appointment of the current CASs has faced challenges, including with Parliament which declined to vet them and the Judiciary also not taking part in the swearing-in ceremony at State House.

Questions have been asked whether or not the President received proper legal guidance from the Attorney General’s office, or used extra-legal options, to satisfy his Kenya Kwanza political agenda following protests that his Cabinet and Principal secretaries choices favoured only two regions.

Speaking last week, Gisore argued that proper legal guidance may have been given but because running government is vested with interests, the President may have relied on extra-legal opinion, which appears sometimes to be more appealing than good counsel.

He recounted that President Kenyatta also fell into a similar trap when political considerations were introduced to the BBI Bill, which otherwise had very noble governance clauses that could have sorted out some of the challenges facing the country.

“Upholding the Constitution means much more than political tokenism. The former AG also received some backlash because of the flaws in the BBI Bill. A similar scenario is emerging,” says Gisore.

Former LSK chairman Ahmednasir Abdullahi is among senior lawyers who welcomed the High Court decision on the CASs while urging the President to respect the court decision.

He tweeted: “President William Ruto tried very hard to give 50 of his political supporters jobs as CASs. (Un)Fortunately, the High Court had a different view. I know the President will respect the law and instead give this great 50 Kenyans some useful jobs to do in building the nation.”

Senator Cherargei has also accused the Judiciary of allegedly trying to arm-twist the government by stopping the operation of the Finance Act.

He said it was hypocritical for the Judiciary to stop raising budgeted revenue, when they also needed resources from the same kitty for their operations and service delivery.

“Where on earth will you tell the government not to collect taxes, yet you are using the same to fuel your car and taxpayers money to run the courts?” asked Cherargei.

He argued that judges were again making conflicting decisions that leave litigants and the public confused while being so averse to criticism yet other arms of government are on the spotlight.

“If you are acquitted today, and tomorrow you are told you are not (free), that is not right. Why is it that when some of us criticise the Judiciary, we are attacked? It looks like it is an exclusive club because Parliament and the Executive are being continuously bashed,” says Cherargei. The admission of Malala and others in Cabinet will also be followed keenly because a similar case was filed earlier when former President Uhuru Kenyatta included Lt-Gen Mohamed Badi in the country’s top decision-making body, something that was challenged in court by current Water CS Alice Wahome.