Is the position of the Prime Cabinet Secretary constitutional? an interrogation through the lens of the 2010 constitution

Many opinions and counter-opinions have been expressed about the decision of the President to nominate and subsequently appoint Musalia Mudavadi as the Prime Cabinet Secretary. It is worthwhile to note at this point that the heart of this debate is not the suitability of the office- holder but rather the constitutionality of the office. Critics of the office hold that it has no constitutional backing while proponents so hold that the office is clearly backed by the constitution and other provisions of the law. This debate and uncertainty of the matter have left citizens and professionals, especially lawyers and jurists in a permanent state of confusion and imbroglio. It is important to strive, however, to make sure that our lens of assessment is right. In so doing, we must choose whether we comment on the matter from an emotional, political or legal standpoint.

The debate seemed to have been ignited during the vetting of the respective Cabinet Secretaries in the National Assembly. While commenting on the same, the Honorable Speaker empathically with a voice of authority noted that the position and the nomination were done in conformity with the constitution. He specifically addressed himself as to Article 152 (1)(d) of the constitution as the constitutional provision giving effect to the nomination. The article provides that the cabinet consists of not fewer than fourteen and not more than twenty-two cabinet secretaries. He proceeded to state that in line with this, the President exercised his constitutionally mandated duty under Article 132 (2) (a) to nominate, among others, Musalia Mudavadi as the Prime Cabinet Secretary. Article 132 (2) (a) on the Functions of the President provides that the President shall nominate and, with the approval of the National Assembly, appoint, and may dismiss the Cabinet Secretaries, in accordance with Article 152. With this, the Speaker declared the position to be constitutional and rested his case.

From the onset, this article declares that this was a flawed interpretation of the constitution and that this position has no legal backing. This paper endeavors to critically analyze the legality of the position of the Prime Cabinet Secretary in Kenya as currently framed and to form the basis for future references.

2.0 History of the office of the Prime Cabinet Secretary/ Minister

A lot of literature has been written on the importance of history in interrogating our present. Indeed, scholars have noted that we cannot truly understand our modern situation and the values and assumptions that inform it unless we know something of the historical conditions that contributed to its production, and this cannot be an exception.

Ben Sihanya observes that the Office of Prime Minister has existed at least twice in Kenya’s constitutional order.1 First, immediately after Kenya got her independence in 1963, Kenya African National Union’s (KANU) Jomo Kenyatta was appointed the Prime Minister and secondly, the Orange Democratic Movement’s (ODM’s) Raila Odinga became the Prime Minister after the signing of the National Accord and Reconciliation Act (NARA), 2008 which resulted into the nusu mkate government. He had been a Member of Parliament (MP) for Lang’ata since 1992.2

The office came to light again during the Building Bridges Initiative conversations, which were a result of the handshake between Raila Odinga and former President Uhuru Kenyatta with the intention to bury the hatchet and have a united nation.

2.1 Post 2007 elections

Following the sporadic election violence between 2007 and 2008, which left hundreds dead, and thousands displaced, the former United Nations Secretary General Kofi Annan successfully brought the two opposing sides together. On February 28th, 2008, Kibaki (PNU) and Raila (ODM) signed a power sharing agreement called the power-sharing Act 2008, which established the office of the Prime Minister and created a coalition government.3 Kibaki was to remain the Head of State while Odinga would have a new role

of Prime Minister and the head of government. The next step was to pass a new law creating these posts in a new unity government and set out the terms for power sharing in the cabinet.4 Indeed, on 18th March 2008, the Kenyan Parliament amended the constitution to give legal effect to the agreement.

This post was however abolished following the promulgation of the new constitution 2010 which by design did not recognize it, hence officially repealed post-2013 general elections, leaving Kenya a purely presidential system.5

2.2 The building bridges initiative

The position featured again in the Building Bridges Initiative debates. The Building Bridges Initiative (hereinafter the BBI) among other recommendations, also recommended a restructuring of the government through an amendment that would have seen the reintroduction of the office of the Prime Minister. The report purported to introduce under

Article 151A of the reviewed constitution, the office of the Prime Minister. The premier was to be appointed by the President if the proposal were adopted.6 The BBI stated that its scheme was to “Do away with a winner-take-all model for the Presidency and opt for a more consociational model that works best for ethnically divided societies.”

Under the new Law, the Prime Minister would have had the following functions:7

(i) Be the leader of government business in the National Assembly;

(ii) Oversee the legislative agenda in the National Assembly on behalf of government;

(iii) Supervise the execution of the functions of ministries and government departments;

(iv) Chair cabinet committee meetings as assigned by the President;

(v) Assign any of the functions of the Office to the Deputy Prime Ministers; and

(vi) Perform any other duty assigned by the President or conferred by legislation.

However, the amendment process was cut short when the Supreme Court upheld the decisions of the lower courts, to the effect that:

“The Constitution Amendment Bill 2020 is unconstitutional for reasons inter alia that former President Uhuru Kenyatta initiated the amendments through his creation of the Presidential Taskforce on Building Bridges to Unity Advisory, and vocal endorsement of the legislation crafted based on their findings.8

While a total of 30 out of 47 County Assemblies voted to advance the BBI Bill to the referendum stage, the proposed referendums drove a deeper wedge in an already deeply polarized political climate. This led to widespread criticisms on various facets. We shall look at a few.

2.2.1 Ruto’s criticisms

President William Ruto was sharply critical of the Bill. He identified five key pieces of the proposal (particularly those that would expand the power and size of Kenya’s executive branch) as concerning. He asserted that the President appointing a political ally to a Constitutionally-empowered Prime Ministerial position would not solve the “winner- takes-all question,” pointing out that in Kenya’s current Parliament, every powerful office under the BBI system would be held by then incumbent Jubilee Party.9

2.2.2 Legal and political criticisms

This was a divided battlefield. There were those that agreed with the President’s arguments while a different faction seemed to be in agreement with the Bill and its recommendations. Jill Cotrell Ghai, a professor of Law, for example argued that such a coalition (of President and Prime Minister who is an ally) would agree on who among them is to be the Presidential candidate and running mate, and who would stand for Parliament and become Prime Minister, assuming their coalition wins both presidency and most parliamentary seats. In other words, anybody who is anybody in politics would be on the same side.10 He further opined that there are two obvious issues with this; the first is that it starts to look rather like a one-party state. The second is that the last three elections have seen heated competition between two rival coalitions of roughly equal size. It seems unlikely that the next three elections will see a much greater degree of political unity.11

On a different limb, Dr. Patrick Mbugua, an expert on Peace & Conflict Studies agrees with Professor Ghai’s criticisms about too much concentrated executive power: He remarked that the proposal to appoint ANY of the MPs from the majority party or coalition of parties to be prime minister and any other persons as deputy prime ministers is a recipe for factional fighting because it undermines the authority of political parties to choose their own representatives.12 Additionally, he argued that the proposed structure will perpetuate the current patron-client system and codify the president’s ability to entrench patrimonial and clientelist rule13 and that it indeed echoes the late Mobutu Sese Seko’s strategy in Zaire of co-opting would-be opponents, letting them feed at the state trough, rotating them in and out of office, and encouraging them to become wealthy through corruption to neutralize them. But as the collapse of Mobutu’s Zaire shows, such a strategy does not foster durable peace.14

This position as have been argued by Ben Sihanya argues is crucial for power sharing, inclusion, economic efficiency, accountability and effective constitutional democracy in Kenya and Africa,15 and this cannot be gainsaid. We laud the BBI Initiative for unsuccessfully trying to legally entrench the position within the constitution.

3.0 Position of the Prime Cabinet Secretary post-2022 elections
Following his win in the recently concluded 2022 presidential elections, President, William Ruto, while putting his house in order and appointing various individuals in different positions reintroduced the position of Prime Cabinet Secretary, thereby appointing Musalia Mudavadi to occupy the said position.

In terms of the role of the Prime Cabinet Secretary, the President through Executive Order No. 1 of 2022 on the Organization of the Government and Republic of Kenya organized and set the Office of the Prime Cabinet Secretary and subsequently listed down his duties and roles. What

is striking to note is that the duties are nothing close to the conventional duties and roles of the Prime Cabinet Secretary.16 According to the organization, the functions include:

  1. 1)  Assisting the President and the Deputy President in the co-ordination and supervision of Government Ministries and State Departments;
  2. 2)  In liaison with the Ministry responsible for Interior and National Administration, overseeing the implementation of National Government policies, programmes and projects;
  3. 3)  Chairing and co-ordinating National Government legislative agenda across all ministries and
    state departments in consultation with and for transmission to the Party/Coalition Leaders in Parliament;
  4. 4)  Chairing the Principal Secretaries Committees and supervising the technical monitoring and evaluation of Government policies, programs and projects;
  5. 5)  Perform any other function as may be assigned by the President.

3.1 The unconstitutionality of the appointment

Article 1 of the Constitution17 places all sovereign power within the hands of the people. It goes further to state that the people may exercise their sovereign power either directly or indirectly through their democratically elected leaders.18

It is to be noted that this sovereign power is delegated to State organs which according to the Constitution shall perform their functions in accordance with this constitution19 (Emphasis ours). These State organs include: Parliament and the legislative assemblies in the county governments;20 the national executive and the executive structure in the county governments;21 and the Judiciary and independent tribunals.22 This one single line is the sole constitutional basis for the existence of the President’s power to issue any form of direct action, let alone executive orders in particular. Indeed, the President being the Executive head of the government can make orders which have the force and effect of law in the country. However, as noted above, this power is fettered in the sense that it can only be exercised within the confines of the Constitution. When then can a governmental decision be declared unconstitutional?

As Waikwa Wanyoike notes, the constitution created (has created) many safeguards to check the President’s power. For example, hardly any of the president’s appointees (except his personal staff) can take office without parliamentary vetting. Even when – as has been with the current Parliament – Parliament fails to appreciate the enormity of its power of oversighting the executive and allows mediocre appointees by the president to take office, the courts can constitutionally intervene and can even invalidate the president’s appointments.23

This therefore means that the interpretation of the correctness of the Executive orders lies with the courts through its inherent power of judicial review. Article 23(1) of the constitution empowers the courts to hear and determine applications for redress of a denial, violation, or infringement of, or threat to, a right or fundamental freedom in the bill of rights. The Courts on previous occasions have heard and determined cases of the unconstitutionality of Executive orders and illegal appointments.24

The principle of judicial review originated from the American jurisdiction. The locus classicus case was Marbury v Madisson which established the power of the judiciary to review the constitutionality of executive actions. It specifically stated that where the executive has a legal duty to act or refrain from acting, the federal judiciary can provide a remedy. Chief Justice Marshall gave several arguments on why the courts could be called upon to provide such

remedies. First, the court argued that the constitution places limits on government powers and these limits are meaningless without the judiciary’s power to enforce them. Next, as the constitution states that it alone, followed by all other types of binding acts, is to be the supreme law of the land, the court saw it as inherent to the judicial role to rule on the constitutionality of the laws it applies since only the laws made in pursuance of the constitution are to be binding. The court also argued that judges take an oath of office to uphold the constitution and they would violate this oath if they were to apply laws that contradict the constitution.

We contend that the President of the Republic of Kenya does not have the power to organize the Government and set out the Office of the Prime Cabinet Secretary and subsequently functions. That doing so would amount to usurping the power of the people to amend the constitution as per the dictates of Article 255. We reiterate the courts holding in Coalition for Reform and Democracy (CORD) & Another v the Republic of Kenya & Another where the Court stated thus:

“…Our constitution having been enacted by way of a referendum, is the direct expression of the people’s will and therefore all State organs in exercising their delegated powers must bow to the will of the people as expressed in the Constitution… Article 2 of the constitution provides for the binding effect of the constitution on State Organs and proceeds to decree that any law, including customary law that is inconsistent with the constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid…”

Kenya is currently organized as a presidential system. This is a system of government where an Executive branch exists and governs separately from the legislature, to which it is not accountable and which cannot, in normal circumstances, dismiss. One of the most significant features of a presidential system is that there is theoretically a pure separation of powers. Members of the Executive cannot form part of the Legislature. This should be distinguished from a parliamentary system of government, which is also known as the Cabinet Government, which is based on a close relationship between the Executive and the Legislature. The Executive is accountable to the Legislature and stays in office only as long as it enjoys the confidence of the Legislature. Here, the Head of the state mostly enjoys symbolic and ceremonial powers. Parliamentary systems usually have a clear differentiation between the head of government
and the head of state, with the head of government being the prime minister or premier, and the head of state often being a figurehead, often either a president (elected either popularly or by the parliament) or a hereditary monarch (often in a constitutional monarchy).

The President’s appointment of the Prime Cabinet Secretary has the effect of altering Kenya’s system of government which is closely linked to the sovereignty of the people.
It is only directly through the people that we can alter the kind of system of government operational within the nation. There is no other way to reconcile this save for an amendment to the constitution through referendum as had been proposed by the BBI Amendment Bill, which the President was highly critical of. To avoid any interference with constitutional supremacy, the Constitution is crystal clear on the procedure to be followed. Article 255(1) of the constitution provides that a proposed amendment to the Constitution should be enacted in accordance with Article 256 or 257, and approved in accordance with clause (2) by a referendum if the amendment relates to inter alia such matters as: the supremacy of the Constitution; the sovereignty of the people; the national values and principles of governance referred to in Article 10 (2) (a) to (d); and the Bill of Rights25 (Our emphasis).

It goes without saying that the first consideration for appointment to this position was loyalty, or put differently, by virtue of being allied to the sitting government. Going back to Ruto’s criticisms on BBI, he emphatically posited that the President appointing a political ally to a constitutionally empowered Prime Ministerial position would not “[sort out] the winner-takes-all question,” pointing out that in Kenya’s current Parliament, every powerful office under the BBI system would be held by the incumbent Jubilee Party. Is this not the very phenomenon, or rather idea he is embracing now? The president, just as had been proposed by the BBI, appointed the Prime Cabinet Secretary, who is in fact a political ally. Does it mean that we are yet to solve the ‘winner-takes-it-all’ dilemma? To top it off, the appointment was from the very Kenya Kwanza Coalition. This is concentrating power in the executive.

This is one act of impunity that has bedeviled the President in his first term in office, less that 100 days into sitting at the highest position of leadership. This is clearly against the provisions of Article 3 (2) by attempting to establish  a government otherwise than in compliance with the constitution, which is utterly unlawful.

4.0 Conclusion

Whilst many expected that the Speaker would come out with a Solomonic decision on the legality of the position of Prime Cabinet Secretary, the very people were not caught by surprise when he declared the position constitutional. The reasons given to justify the same were clearly misconceived and a gross misinterpretation of the constitution. Put differently, justifying the position by opining that in line with Art. 152(1) (d), the President exercised his constitutionally mandated duty under Article 132 (2) (a) to nominate, among others, Musalia Mudavadi as the Prime Cabinet Secretary amounts to mutilation of the provisions of the constitution. Violating the constitution just to create such alien positions for political allies ought to be untenable at first instance. Elsewhere, and after making a critical comparison between the position as was proposed by the BBI and the position currently, their distinction is almost invisible. Even after the vehement criticism of that position, the sitting government still went forth to adopt it. What conclusion then are we left with in terms of the character of the incumbent…a hypocritical one? We are actually left with more questions than answers. For instance; should we be apprehensive that the incumbent government is one that takes no notice of the provisions of the constitution?

The authors are both LL. B students at the University of Nairobi. They can be reached via email addresses adamsllayton01@ gmail.com and katibaeella@gmail.com respectively.

1Ben Sihanya (forthcoming 2021) “Prime Minister and Deputy Prime Minister in Kenya,” in Ben Sihanya (2021) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 1: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Prof Ben Sihanya Advocates, Nairobi & Siaya.

2Ibid.

3The National Accord and Reconciliation Act of 2008 is an act of the National Assembly of Kenya that temporarily re-established the offices of Prime Minister of Kenya, along with the creation of two deputy prime ministers.

4″Kenyan leader signs power-share law”. Al Jazeera English. 19 March 2008. Accessed on November 16th 2022. Odinga’s party and Kibaki’s coalition will each name a deputy prime minister, while the cabinet will be split evenly between both sides to form a unity government.

5″The Presidential System of Government in Kenya”. Gĩthĩnji, Afro Cave, Accessed on 16th November 2022

6The Constitution of Kenya (Amendment) Act, 2020. Article 151A (1) There shall be a Prime Minister appointed by the President in accordance with Article 151B.

7Ibid. Art 151A. https://www.bbi.go.ke/_files/ugd/2ac70e_d879f92067a64003832df8db5a9d23d9.pdf

8Attorney General & 2 others v Ndii & 79 others; Prof. Rosalind Dixon & 7 others (Amicus Curiae) (Petition 12, 11 & 13 of 2021 (Consolidated)) [2022] KESC 8 (KLR) (31 March 2022) ( Judgment) (with dissent). The President could not initiate constitutional amendments or changes through the popular initiative under article 257 of the Constitution. (NS Ndungu, SCJ dissenting). The President initiated the amendment process in issue (NS Ndungu & I Lenaola, SCJJ dissenting). Under article 257 of the Constitution, the Constitution (Amendment) Bill, 2020 was unconstitutional (NS Ndungu & I Lenaola, SCJJ dissenting). See BBI 1 (High Court), BBI 2 (Court of Appeal) & BBI 3 (Supreme Court).

9Rushdie Oudia, ‘BBI ‘fraudulent and deceitful agenda’, William Ruto says’ Nation Africa. <https://nation.africa/kenya/news/politics/bbi-fraudulent-and-deceitful- agenda-william-ruto-says–3613726 https://nation.africa/kenya/news/politics/bbi-fraudulent-and-deceitful-agenda-william-ruto-says–3613726> Accessed on 16th November 2022. “BBI was the most fraudulent and deceitful agenda carried out in the name of changing the constitution. You don’t need to change the constitution to increase resources to counties,” said Dr Ruto.

10Ghai, Jill Cottrell (6 January 2020). “Why BBI will not solve Kenya’s problems | Democracy in Africa”. Accessed on 16th November 2022.

11Ibid

12Mbugua, Patrick K. (20 November 2020). “PATRICK K. MBUGUA – Why BBI Will Not Promote Peace or Prevent Violence | The Elephant”. Accessed on 16th November 2022.

13Ibid

14Ibid

15Ibid.

16See the 1969 Constitution.

17The Constitution of Kenya 2010. 18Article 2 of the Constitution. 19Article 3.

20Article 3(a).

21Article 3(b).

22Article 3(c).

23Waikwa Wanyoike, “Executive Disorder: Unpacking Illegal Presidential Directives , the Elepghant, Nairobi, July 13th 207 accessed today. < https://www.theelephant. info/features/2017/07/13/executive-disorder-unpacking-illegal-presidential-directives/>

24Mwangi Gathanwa, High Court delivers another shocker to Uhuru < https://www.pulselive.co.ke/news/high-court-declares-president-uhuru-kenyattas-executive-order- 1-of-2020/ttd1v2m> accessed today pulse live Nairobi.june 10 2021.

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The Platform for Law, Justice & Society is published by Gitobu Imanyara & Co every month principally to offer a platform for informed and critical discussion of the National Values and Principles set out in Articles 10 (2) of the Constitution of Kenya.

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