Two recent decisions by the High Court, one declaring the Chief Administrative Secretaries (CAS) positions unconstitutional and the other injuncting implementation of the Finance Act should silence those who had already written the epitaph on the Judiciary.
They claimed it was now mortgaged to the Kenya Kwanza administration. The two decisions, though the Finance Act one is only on an interim basis, place significant policy hurdles on the government and are the kind previous administrations either ignored or promised to “revisit”.
While there are limits to the extent we can critique these live proceedings with one on appeal and the other about to go for full hearing before a three-judge bench, there are concerns one can legitimately raise on the CAS one, even as it awaits the appellate process. The issue of the CAS office was litigated before. Senator Okiya Omtatah had obtained orders declaring the office unconstitutional in 2019, on the basis that this office was created without public participation.
However, since by then the officers were in office, the orders were suspended for the balance of the Jubilee term. To cure this defect, the Public Service Commission went through a process of seeking public views on the matter. If we are to be honest, this process, like most of Kenya’s public participation, was more about obeying the letter of the law, not its spirit. I doubt there was ever any possibility that the Public Service Commission would go back to the President and refuse his request on the basis the public strongly opposed the position.
Indeed, the PSC in its court papers admitted that more people were opposed to creation of the offices than those in support. Be that as it may, the public views were sought. The commission upon reviewing public comments determined the offices were necessary and advertised the positions and appointed 50 secretaries. This is where it gets murky in the court decision.
The court based one its primary decisions on the argument that the President, having originally sought to appoint 23 Secretaries, and the PSC having appointed an additional 27, these additional 27 were unconstitutional.
According to the court, the “PSC sought public participation on the initial 23 officers” and assumedly, that is what the public gave its views on. However, neither the adverts seeking public views on the creation of the office, or the advertisement for CAS positions, both of which are still on the PSC website, mention 23 officers; the number of 23 appears to have been contained in communications between the PSC and the President.
It is also clear from court proceedings that the President wrote to PSC reviewing the number to 50. It is not clear how the court determined that public participation revolved around 23 positions, a matter never in the public domain.
Interestingly, the court then proceeded to find the entire CAS office unconstitutional because it went against the spirit of the Constitution. The court, almost as an aside, argued that the Constitution had abolished the office of Assistant Minister, yet PSC and Presidency was returning this office through the back door by appointing officers who were in every respect Assistant Ministers.
In my humble view this is the issue the court should have exercised more of its intellectual rigour. At the heart of the constitutional challenge to this office is whether the government can by statute or through administrative action create offices that replicate in all senses those that were abolished by the constitution.
Purposive interpretation of the Constitution requires that we look at the intent of the Constitution in limiting the number of Ministers and doing away with their Assistants.
This would then need to be balanced against the need to allow executive discretion in creating administrative structures that facilitate better functioning of government.
This would have been a more useful discourse on the essence of our Constitution than the confusing arguments about the 23 against 50 appointments or the one about public participation in the 2018 case.
One hopes that later appellate courts will resolve this issue substantively once and for all so that future governments understand their limits, if any will be set by the courts.
The writer is an advocate of the High Court