In a significant development, on June 27, the State House issued a statement announcing President William Ruto’s decision to allow key advisors to attend Cabinet meetings. The advisors are Monica Juma (National Security), David Ndii (chairperson of the Council of Economic Advisors), Harriette Chiggai (Advisor on Women’s Rights), and UDA Secretary-General Cleopas Malala.

The move has raised questions from a section of legal experts, as it comes barely three years since the High Court found similar actions by former President Uhuru Kenyatta illegal.

In September 2020, then Kandara MP and current Water Cabinet-Secretary (CS) Alice Wahome sued the state over the attendance of cabinet meetings by then Nairobi Metropolitan Services (NMS) Director-General Major General Mohammed Badi.

In her petition, the MP said the invite extended to the NMS boss was unconstitutional, and she wanted him to be barred from attending any further Cabinet meetings.

According to the MP, the state had bypassed the Constitution by inviting the NMS boss to Cabinet meetings. The NMS boss was allowed to attend Cabinet meetings after taking an oath of secrecy.

High Court Judge, Justice Anthony Mrima found that as a result of the oath of secrecy, the NMS boss had effectively become a member of the Cabinet. The judge found that the Constitution didn’t accord the President any powers to appoint anyone to the Cabinet, finding that Major General Badi’s participation violated the Constitution.

The NMS was put into office on March 18, 2020, by President Kenyatta a month after the then Nairobi County Governor Mike Sonko handed over four key functions to the national government.

In September 2021, Justice Mrima found that the NMS boss’s inclusion in Cabinet meetings was concealed in secrecy, lacked transparency and that since he was never vetted by the National Assembly before sitting in the Cabinet, there were no mechanisms for oversight of his role.

The judge also found that his term of office in the Cabinet was an illusion and that he was a stranger in the Cabinet. The High Court decision was never challenged, and the NMS boss immediately ceased attending Cabinet meetings, at least officially.

Last month’s taking of the oath of secrecy by President Ruto’s advisors Dr Juma, Dr Ndii, Ms Chiggai, and Mr Malala, came after months of consultations on how best to enjoin advisors in Cabinet meetings.

The Constitution

Article 152 of the Constitution stipulates that members of the Cabinet are the President, Deputy President, Attorney-General and Cabinet Secretaries (CSs) – not fewer than 14 and not more than 22.

Article 154 of the Constitution goes ahead to establish the Office of Secretary to the Cabinet, which is an office in the public service.  The Secretary to the Cabinet is nominated, with the approval of the National Assembly, appointed by the president. 

The Secretary to the Cabinet is tasked with the responsibilities of arranging the business of the Cabinet, keeping the minutes and communicating decisions of the Cabinet to appropriate authorities.

Questions raised

A section of legal experts question the move. Outspoken senior counsel Ahmednasir Abdullahi asked, “Did the Hon. Attorney General JB Muturi or CS Alice Wahome bring to the attention of President William Ruto this judgment of the High Court that prohibits strangers to eavesdrop on meetings of the Cabinet?”

The Law Society of Kenya (LSK) claims that the President may have ignored the Attorney-General’s advice against including the four from attending cabinet meetings. LSK president Eric Theuri in an interview on Citizen TV early this month said the AG wrote an advisory to the President last December informing him of the illegality of such a move.

The President has the freedom to pick any person as an advisor, however, their participation in Cabinet meetings may be challenged in court.