In a highly competitive verdict, Judges Chacha Mwita, Lucy Njuguna and Jessie Lesiit ruled that while the Head of State is empowered to make such appointments, the Heads of State have not undergone competitive recruitment.
Katiba The Institute and the African Center for Open Governance (Africog) had sued the Attorney General, the Public Service Commission (PSC) and the 129 parastatal chiefs, which is a complete change in the way it is mandated by the 2010 Constitution, including government appointments.
“While the past was marked by open corruption, tribalism, nepotism, favoritism, scratches and politics, patronage, the new regime requires a break from the past,” ruled the court.
“The constitution marks the end of the era of“ jobs for the young ”. Article 10 sets out the values that must be incorporated into any decision-making process, including the value of appointments, “added the court.
President Kenyatta has suffered a number of losses in court and is learning the hard way Limits of his powers courtesy of the Constitution.
Abuse of office
In April, the courts blocked the presidential-ordered investigation into alleged abuse of office and economic crimes by the Kenya Tea Development Agency (KTDA) and its officials . In February, a President’s decision to transfer the Kenya Meat Commission (KMC) from the Department of Agriculture to the Department of Defense was halted, but the order was ignored.
The executive branch also had a number of bills that Parliament would propose had sponsored, as well as the Building Bridges Initiative (BBI), a product of the handshake between the president and opposition leader Raila Odinga, were declared unconstitutional. The future of the BBI is currently pending as appeals are pending against the decision in court.
The loss on Thursday in the High Court was the second instance of the courts to declare the president’s appointments illegal .
In April, Justice Anthony Mrima declared the position of Chief Administrative Secretary (CAS) introduced by President Kenyatta in 2018 to be unconstitutional.
The judge dismissed the high in a stabbing verdict Court also asked Parliament to re-examine 10 Cabinet Secretaries who were reappointed by the President after his re-election in 2017.
“The President’s term ends with the Cabinet term. Those who served between 2013 and 2017 should have been re-examined to join the cabinet, ”judged Mrima, instructing the WG to report to him within 30 days on the composition of the cabinet in terms of gender and regional balance reimburse.
While this may seem like a political loss to the president, legal experts have praised the courts for flexing their muscles while fingering the AG for not giving his boss good advice.
“I think the judiciary reiterates that the right and correct procedures should be followed at all levels,” Victor Olao, a constitutional attorney, told the Saturday Nation .
< h2> Best legal representation
“The question is not why the government keeps losing, but whether the government officials in court know what they are doing. The executive branch is expected to have the best legal representation, ”said Makueni Senator Mutula Kilonzo.
For attorney Kibe Mungai, the series of president’s losses in court could have three serious consequences. On the one hand, the impression could arise that it is not important for the President to exercise the functions of his office in accordance with the law.
Second, the impression would arise that the WG has not given competent advice. “This may not be the case as the president may not have an appetite for good legal advice,” said Mungai.
Third, and that is the worst for the country, the impression that the president is sticking not to the law, which will affect the quality of the law if it is enforced by the government, and the government’s deep distrust of the government.
Something like questioning the cabinet was in court during the regime of Presidents Jomo Kenyatta and Daniel Moi unknown.
Unlike his predecessors, who had an almost imperial presidency, President Kenyatta is the first president to hold a full term under the 2010 constitution. His decisions were routinely challenged in court, which had negative consequences for him.
Court decisions ignored
However, many court decisions were ignored. For example, the 10 CSs are still in office, as are the CASs. KMC is still under the Department of Defense and the government has yet to issue a statement regarding the 129 board appointments. President Kenyatta also has yet to appoint the 40 judges recommended by the Judicial Service Commission (JSC) despite a court order.
He also refused to appoint and regulate the election of Judge Mohamed Warsame to JSC , and the courts had to step in to ensure the president is overlooked in the appointment.
President Kenyatta’s immediate predecessor Mwai Kibaki was for the first three years of the 2010 constitution only head of state. He suffered only three losses in court: his attempt to appoint Alnashir Visram as Chief Justice in 2011, his appointment of county commissioners, and in 2013 when he was ordered to appoint commissioners to the National Land Commission.
“So did it is, the judiciary is one level above the other two government arms. Remember that the executive can have leeway in parliament, but the legislature is not absolute, whatever it does has to be approved by the judiciary, “said lawyer Danstan Omari.
” Most importantly That the current judiciary gets what its audacity from CJ Maraga has forced the executive back to the drawing board that everything it does must be viewed from the standpoint of the law, “said Mr. Omari.
Mr. Mungai says the number of losses the president has suffered in court is not about his powers being reduced, but rather that he is not following the established procedure and spirit of the 2010 Constitution. p>
“The President has many powers. However, the law only says that you follow the established process, ”said Mungai.