An affront to the Constitution and additional expenditure amidst efforts to tighten austerity measures. 

The adoption by Parliament of a proposal by the National Assembly’s Justice and Legal Affairs Committee (JLAC) on a provision amending the National Government Coordination Act, 2013, to establish the Office of the Chief Administrative Secretary (CAS) goes against the spirit of the 2010 Constitution. 

In a report tabled in Parliament on February 21, JLAC agreed with the views of the Public Service Commission (PSC) on a role for the CAS and further suggested that capping the number of CASs may affect the Executive’s ability to recruit and deploy the number of CASs required to deliver its programmes. 

The approval of that report by Parliament will result in either legislative proposals or bills.  

The PSC stated that it is in support of the proposed Section 12A (1) as it is in line with its recommendation to the President on the establishment of the office of CAS by Article 132(4)(a) of the Constitution.

Given that the office of CAS is a senior position in the public service, the PSC proposed adding a new sub-clause (c) to Section 12A (4) to provide for years of professional experience: “has at least 10 years of relevant professional experience, five years of which should have been in a leadership position or a top management level in the public service or private sector.” 

PSC also noted that the current proposed role of the CAS will conflict with Section 9(4) of the current Act on the responsibility of the Cabinet Secretary (CS), thus recommending for its amendment to provide liaising with Parliament on behalf of the CS. 

This goes against the spirit of the 2010 Constitution, and the CAS position will lead to conflicting roles with Cabinet Secretaries (CSs) and Principal Secretaries (PSs).  

Senior Counsel Otiende Amollo, who is also the Rarieda MP, said the functions ascribed to the CAS office are a duplication of those already assigned to CSs and PSs. “The establishment of the office is therefore likely to result in a conflict of roles.” 

According to SC Amollo, who was a member of the Committee of Experts on Constitutional Review and participated in public discussions around the country, it was his view that Kenyans intended to abolish the position of Assistant Minister. “The office of the CAS is akin to that of Assistant Ministers; thus, the proposal offends the spirit of the Constitution of Kenya and the will of the Kenyan people.”

Already, the Courts have pronounced themselves of the unconstitutionality of the office of the CAS. 

On October 12, 2022, the PSC invited applications for 23 positions in the office of CAS through Gazette Notice No. 12432. Thereafter, the Law Society of Kenya (LSK) challenged the advertisement in the Employment and Labour Relations Court.  

The court found that the PSC had complied with the appropriate process required to hire the 23 CASs. The PSC later shortlisted 240 candidates for interview. The interviews were conducted between March 1 and March 7, 2023. On March 16, President William Ruto nominated 50 persons for appointment against an initial vacancy declared for 23 positions. 

On July 3, 2023, the High Court, as a three-judge bench, sat to deliver its judgement over the creation of the CAS office by the President. In delivering its judgement, the High Court declared the office unconstitutional. It further stated that whereas there was public participation in the initial complement of 23 CAS, there was a lack of public participation in the additional complement of 27 CASs. 

The position elicited some controversies even during the previous regime. During President Uhuru Kenyatta’s regime, the CAS position was the subject of litigation, and the High Court held that the office was unconstitutional for failing to recruit competitively and for violating public participation requirements.    

With the current move, Kenyans will shoulder a higher wage bill burden to sustain the appointments as the government moves to anchor the appointments declared unlawful in law.

Unconstitutional legislations 

The Judiciary has not been shy about returning Parliament to the drawing board. And vice versa, the government has been going back to the corridors of justice, filing one appeal after the other. 

According to Mzalendo Trust, Acts of Parliament have been declared unconstitutional by courts across the country, a very avoidable scenario. The Parliament, while taking no heed to the court’s sentiments, has appealed such decisions at the expense of citizens’ taxes. Several Acts of Parliament have seen such a pattern, including the infamous Finance Act, 2023, through which the Housing Levy came up.

Individuals like Busia Senator Okoiti Okiya Omtatah, Civil Society Organisations, and the Law Society of Kenya (LSK) have seemingly been the last line of defence when it comes to challenging the constitutionality of Acts of Parliament. 

For instance, in October 2020, Mzalendo Trust reported that the High Court of Kenya nullified a shocking 23 Acts passed by the National Assembly. The court stipulated that the disputed Acts were in contravention of Articles 96, 109, 110, 11, 112 and 113 of the Constitution of Kenya, deeming them unconstitutional, null and void. 

Interestingly, Mzalendo goes on to state that among the pieces of legislation affected then was the Finance Act of 2018, which led to a very costly outcome, with the norm thrown into play that the taxpayers had to bear the costs.

It’s evident that a consistent pattern across such legislation is that they rarely capture the interests of the ordinary Kenyans. For instance, in the ruling delivered on January 26, 2024, by the Court of Appeal barring the state from further deducting the Housing Levy, the phrase ‘public interest’ was mentioned 26 times. Among other sentiments was that ‘public interest cannot lie in transient benefits or results of an unconstitutional action.’

In addition, in the case of the CAS position, the Court of Appeal further stated, “The offices were created in violation of the Constitution; we cannot fathom how the public can be compensated or how it can be comforting to tell the people of Kenya that, after all, service has been rendered to you, never mind it is service in violation of the constitution. Where purported service is rendered in violation of the constitution, it does not require rocket science to fathom that it is not a legitimate service beneficial to the public. Service rendered in violation of the constitution is no service at all in the eyes of the law.”