Blow to Ruto as apex court overturns ruling on PS appointments

President William Ruto’s administration has suffered a major setback as the Supreme Court overturned lower court rulings that had dismissed a petition challenging his 51 Principal Secretaries’ appointments.

In a judgement rendered by a five-judge bench led by Chief Justice Martha Koome found that the Employment and Labour Relations Court (ELRC) and the Court of Appeal erred in dismissing Dr Magare Gikenyi’s petition, which questioned the appointments for failing to meet constitutional gender balance and diversity requirements.

Dr Gikenyi, a Nakuru-based surgeon, had in December 2022 filed a petition challenging President Ruto's appointments, pointing out that only 11 women were among the 51 Principal Secretaries, a mere 21 percent representation that he argued fell far short of the constitutional two-thirds gender rule.

He further contended that the appointments made on December 2, 2022, did not adequately reflect ethnic, regional, and cultural diversity as mandated by the Constitution.

The petitioner also questioned President Ruto's appointment of Bernice Sialaal Lemedeket as Principal Administrative Secretary to the National Police Service Commission, arguing the Constitution does not provide for such a position.

However, the ELRC and Court of Appeal struck out the petition on technical grounds, holding that Dr Gikenyi should have first exhausted a statutory procedure allowing persons to submit evidence to Parliament contesting nominees' suitability before their approval.

The Attorney General opposed the case, submitting that the appellant's failure to exhaust the parliamentary process rendered the petition premature and incompetent and urged the court to find that the appellant had not raised a ripe or justiciable claim.

The state's legal team argued that the issues raised by Dr Gikenyi are inherently political and fall within the constitutional mandate of the Executive and Legislature, and therefore, the courts should not interfere with such presidential appointments.

The National Assembly had argued that the petitioner lacked jurisdiction to institute the petition due to the existence of an alternative statutory mechanism.

"The appeal fails to raise any substantive constitutional issues that would warrant the Court's intervention as the appeal does not challenge the Court of Appeal's interpretation or application of the Constitution but merely cites general constitutional provisions," the MPs told the court.

Parliament's lawyers further maintained that Section 6(9) of the Public Appointments (Parliamentary Approval) Act provides a clear avenue for individuals aggrieved by the shortlisting, nomination, vetting, or appointment of Principal Secretaries to seek redress before the National Assembly and that this statutory framework provides an adequate and effective remedy for grievances relating to presidential nominees.

But in Friday's judgment, the Supreme Court disagreed and rejected this reasoning, finding the lower courts had misapplied legal doctrines to block what was fundamentally a constitutional challenge.

“Parliament cannot resolve constitutional questions,” the Koome led bench ruled

The Supreme Court made clear that the statutory mechanism under the Public Appointments (Parliamentary Approval) Act, which allows objections to individual nominees' suitability, could not address Dr. Gikenyi's broader constitutional challenge about the overall composition of appointments..

“The appellant’s contention was not with the suitability of the candidates, but rather the overall composition of the appointees and what he considered a prima facie failure to reflect the two-thirds gender rule and a balance of ethnic, regional and cultural diversity,” the ruling said.

The judges emphasized that such constitutional questions squarely fall within the province of judicial determination and should not be stifled by parliamentary processes.

"The appellant's right to access the court for redress of alleged constitutional violations should not have been impeded or stifled in a manner that frustrates the enforcement of fundamental rights and freedom," the court ruled.

"We therefore find that this was not a proper case for the ouster of this Court's jurisdiction, and the appellant was entitled to approach the courts for appropriate relief."

The Supreme Court criticized the trial court for failing to consider the substance of the petition.

“The trial court was obligated to interrogate the appellant’s claims on merit and render a determination. By not doing so, it fell into error, which the Court of Appeal failed to rectify,” the court noted.

This means the ELRC should have examined whether the appointments actually violated constitutional provisions on gender balance and diversity, rather than dismissing the case without considering its substance.

Despite finding in Dr. Gikenyi's favor on jurisdiction, the Supreme Court declined to remit the case back to the trial court or rule on the merits of the constitutional challenge itself.

The judges noted that similar proceedings are ongoing before the ELRC, including Petition No. E513 of 2022, which directly touched on the constitutionality of the appointment of Principal Secretaries.

"We are therefore inclined and indeed consider it prudent to let those proceedings take their course before the competent forum to their logical conclusion," the court stated.

"We therefore emphatically decline the invitation to pre-empt their determination by pronouncing ourselves on the issues therein."

This means the constitutional validity of President Ruto's Principal Secretaries remains subject to ongoing litigation that must now be heard on its merits.