The High Court has quashed the establishment of President William Ruto’s advisory offices, dealing a setback to the Broad-Based government structure that had incorporated politicians-cum-technocrats allied to the Opposition political outfits.
In a far-reaching judgment delivered on Thursday, the court nullified the creation of the offices of advisers to the President and voided the appointments of 21 individuals, who had been serving in the positions.
The court also barred the Public Service Commission and the Salaries and Remuneration Commission from recognising the offices or paying any salaries and benefits linked to them.
The decision stemmed from two petitions filed by governance watchdog Katiba Institute and rights activist Suyuanka Lempaa, who had challenged what they described as the re-emergence of a “kitchen cabinet” within the national executive, operating outside the Constitution and established public service frameworks.
Justice Mwamuye found that although the President may have acted in good faith, the process used to create the advisory offices was riddled with “multiple and severe breaches” of the Constitution and statute.
“The actions, decisions and omissions in the process exhibit constitutional failures of a fatal and incurable nature,” the judge ruled.
The quashed offices listed include the President’s Council of Economic Advisors, Office of Food Security and Animal Production Advisor, Government Delivery Services, Office of the National Security Advisor, Office of the Women’s Rights Advisor and Office of the Council of Climate Change Advisor.
Others in the list are the Office of Fiscal Affairs and Budget Policy, Office of the Economic Transformation, Advisor on Livestock and Rangeland Management, Senior Advisor of Constitutional Affairs, Senior Political Advisor, Special Advisor on youth economic empowerment and Office of the Senior Economic Advisor.
Among the prominent beneficiaries of the contested offices are Mr David Ndii, Prof Makau Mutua, the late ODM party leader Raila Odinga's nephew Mr Jaoko Oburu, former Solicitor-General Kennedy Ogeto, lawyer Harriet Chiggai, among others.
Chairperson of Presidential Council of Economic Advisors Dr David Ndii gives a speech during an Economic Forum at Serena Hotel in Nairobi on November 7, 2023.
Photo credit: File | Nation Media Group
The petitioners contended that the hiring has led to a bloated executive, which Kenyans had corrected in 2010 through a new Constitution by capping the number of cabinet secretaries and principal secretaries, “who are supposed to be technocrats and should be the one to advise the President”.
The court held that President Ruto bypassed the mandatory recommendatory role of the Public Service Commission (PSC) under Article 132(4)(a) of the Constitution and failed to meet the statutory conditions set out in the Public Service Commission Act and regulations.
It also faulted the process for proceeding without input from the Salaries and Remuneration Commission on fiscal implications.
Further, the court found that the offices were created in secrecy, without public participation, in violation of Articles 10 and 201 of the Constitution. The judge said this offended core public service values of transparency, merit, fair competition and prudent use of public funds.
“Parallel, unregulated and perhaps unnecessary advisory structure through an opaque, non-competitive and irregular process offends the very heart of the constitutional ethos of a transparent, accountable and efficient public service,” said the judge.
As a result, the court declared both the offices and the appointments null and void from the outset. It issued orders quashing the decisions that created the offices and appointed the advisers, and permanently restrained the State from facilitating or effecting any payments to them.
The judge also issued a structural order directing the PSC to conduct, within 90 days, a comprehensive audit of all offices established within the Executive Office of the President since the promulgation of the 2010 Constitution, with particular focus on those created under President Ruto after August 2022.
Any office found to have been established unconstitutionally is to be abolished, with a progress report to be filed in court within 120 days.
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