By virtue of Executive Order No. 1 of 2023, ‘Organisation of the Government of the Republic of Kenya,’ issued in January 2023, the president announced 21 ministries each headed by a cabinet secretary. In addition to that, he announced 49 state departments and 51 principal secretaries who are the heads of the various state departments. This followed the announcement and pronouncement of the cabinet consisting of the cabinet secretaries, the attorney general and the prime cabinet secretary who is termed the most powerful cabinet secretary via Gazette Notice No. 13033 of 26^th October 2022.

Article 130(1) of the Constitution of Kenya provides that the national executive shall be composed of the President, the Deputy President and the rest of the Cabinet. Article 130(2) further states that the composition of the national executive shall reflect regional and ethnic diversity of the people of Kenya. This article seeks to establish whether the threshold set out in the second clause of Article 130 has been met by the current government of Kenya.

Section 2 of the National Government Co-ordination Act defines national government function as a function assigned by the Constitution, the Act or any other law to the executive arm of government.[1] Further section 12 of the Act provides that the principal secretaries also perform part of the functions of the national executive. This unequivocally makes them part of the national executive.

Article 155(1) of the Constitution of Kenya establishes the office of the Principal Secretaries, which is an office in the public service. Article 232(1)(h) providing on the values and principles of public service, it states that it should reflect the representation of Kenya`s diverse communities, affording adequate and equal opportunities for appointment, training and advancement, at levels of public service, of men and women, the members of all ethnic groups and persons with disabilities. The focus here shall be on the members of all ethnic groups.

Bhopal R. in his article titled, ‘Glossary of terms relating to ethnicity and race’ defines an ethnic group as a social group a person belongs to, or either identifies with by others, as a result of a mix of cultural and other factors including language, diet, religion, ancestry and physical features traditionally associated with a race.[2]

Regional, though not defined by the Constitution of Kenya refers to the difference in geographical locations. The main purpose of having regional diversity and co-ordination is to ensure achievement of the spirit of regional integration. This article shall format its arguments and thought process based on the following:

1. Constitutional background of the issues on ethnic and regional diversity in Kenya.
2. Composition of the cabinet in Kenya.
3. Composition of heads of state departments in Kenya.

Constitutional background of the issue on ethnic and regional diversity in Kenya

Kenya has got 42 ethnic groups with 44 tribes which speak different language and they all hail from different geographical locations. Despite the fact that this communities have different cultural practices, the Constitution of Kenya 2010 recognises culture as foundation of the nation and as the cumulative civilization of the Kenyan people.[3] It further provides that the state shall promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage.[4] This can only be achieved if the leadership of the nation comprises and bears a representation of all the communities and cultural organisations. The main purpose of the provisions stated above is to ensure that Kenya stands as a unified nation with great regional and ethnic integration. It is possible to achieve integration based on ethnic and cultural diversity if as a nation we endeavor to minimize feelings of ethnocentrism and emphasize the idea of cultural relativity, with each group well represented in leadership and each appreciating the other’s values and differences.

The issue of ethnic and regional differences has since time immemorial placed Kenya on a perilous political trajectory. From the time of tyrannical rule to the banning of multipartyism, moments of great political intolerance and making of the opposition and its supporter including the tribes and subterranean regions. There has been a great issue of concern including a lack of emphasis on the doctrine of equity during the time of allocation of national budgets and distribution of public resources.

During the colonial period in Kenya, most leaders kept aside their ethnic differences and branded themselves the name ‘Kenyans.’ This helped greatly in the struggle for self-rule and independence since it acted as a halt and a great setback to the European mode of ruling that was engrained in the name ‘divide and rule.’ Since the policy was the major way that was used by the colonialists to actualize their colonial and imperialistic economic and political objectives, the ethnic integration among Kenya’s elite leaders made it difficult for them to accomplish their egomaniacal desires. A case example is the instance when the colonial administration in Kenya wanted to transfer power to Jaramogi Odinga whom they thought was one of their political loyalists. The main reason why they wanted to do this was to protect their economic interest after independence. Jaramogi turned down their black-tainted thoughts and demanded for the release of Kenyan leaders including Jomo Kenyatta who had been arrested and were kept in custody. The nation achieved great milestones because of the selfless decisions that were made in the colonial period by our leaders.

The 1963 Independence Constitution, 1969 repealed Constitution and the Constitution of Kenya 2010 have both recognized the role of appointment of the cabinet as a presidential role. Chapter II of the repealed Constitution specifically in Section 16(2) gave the president the role of appointing ministers from members of the national assembly.  Section 19(1) further gave the president the role of appointing assistant ministers from members of the national assembly.

After independence in 1963, the Kenya African National Union and Kenya African Democratic Union which were expected to appreciate diversity and seek a way of ensuring there is integration despite the differences were turned into ethnic regimes that served the interest of the major tribal compositions in Kenya. President Kenyatta and President Moi used the governmental posts to award their political compatriots. During Kenyatta’s rule (1963-1978) Kenya underwent a lot of turbulent periods. There was great suppression of pluralistic democracy, political assassinations and monopolization of the top media houses by the state. Kenyatta used his power and marginalized his erstwhile liberation counterparts such as Odinga and Tom Mboya. When President Moi came into power in 1978, Kenyans thought that their liberation period had arrived but to their utmost disappointment, the contrary happened. This made many communities feel excluded and they resorted to using force to ensure that their freedoms and rights are attended to. This on many occasions led to political upheavals that constantly left the nation at a daunting state with most of its technocrats and other specialists dead or with lifetime disabilities that could not be rectified for them to offer the services they used to offer before they were hit by the unexpected catastrophic events.

Okoth Ogendo, in his article on the paradox of Constitutions without Constitutionalism in Africa, states that it is in Africa that we have well-made and drafted laws with no laws to implement those laws.[5] In 2007, there was a very great political upheaval that occurred due to ethnic disintegration. It had an enormous cost on human life as more than 1000 people died in less than two months and it left hundreds of thousands displaced with no places to inhabit. The violence revealed the greatly entrenched political decay in Kenya and the lack of  a clear representation of all communities in the national government. The cataclysms ended because the leaders of the nation came to an agreement. This paints a clear depiction that the preeminent reason behind the advancement of a nation is unity among leaders from all ethnic backgrounds. This will only happen if we have all communities and ethnic groups represented in the top leadership.

Pursuant to such predicaments, Kenyans went forth to a referendum and made new laws to govern them that are documented in the Constitution of Kenya 2010. One of its provisions in Article 152(3) and Article 233(3) abolished the provisions of the repealed Constitution of ministers and assistant ministers being appointed from the parliament. This was because the president used that opportunity to award his political. This made it difficult for regions that were deemed to belong to the opposition to develop simply because Kenya was playing regional and ethnic politics. To ensure that this does not suffice in the future, the wordings of the Constitution of Kenya 2010 are clear in Article 130(2) that the composition of the national executive shall reflect both regional and ethnic diversity.

It is lucid that the wordings of the Constitution of Kenya 2010 in Article 2(1) that the Constitution is the Supreme law in the country, and it binds all other state organs makes it limpid that the realization of rights relating to appointments translates into an immediate command. That means that all appointments into public offices have to be done in strict conformity with the Constitution and the law unless otherwise legally permissible. In the case of Elijah Maina v Republic, it was stated that construing the Constitution and statutes shall be done strictly and not broadly or liberally.[6]

The next question of fundamental concern is that is there any law that seeks to implement the Constitutional matter on the national executive showing a reflection of both regional and ethnic diversity.

Section 7 of the Parliamentary Approval Act sets out that it is the role of the national assembly to approve the appointees by the president. It sets out the fact that the national assembly needs to be put into great consideration when conducting the approval. It sets out that they shall look at the procedure used to arrive at the nominees, any Constitutional or Statutory requirement relating to the office in question and the suitability of the nominee. Who then plays the role of ensuring that the parliament conforms to its constitutional roles?

The fourth schedule of the Constitution of Kenya 2010 provides for an oath or affirmation that members of the national assembly take swearing that they will bear true faith and allegiance to the people and the Republic of Kenya and they will obey, respect, uphold, preserve, protect and defend the Constitution of Kenya as they faithfully and conscientiously discharge their duties as members of parliament. The article will used in the schedule making it a binding obligation that is punishable by law upon breach. Article 73(2)(c) provides one of the guiding principles of leadership and integrity as the leader offering selfless service based solely on the public interest, demonstrated by honesty in the execution of public duties and the declaration of any personal interest that may conflict with public duties. The members of the national assembly should be able to uphold integrity and ensure that they fulfill their constitutional mandate.

Who is man? Lord Acton in the year 1887 in his writing to Bishop Creighton, stated that power tends to corrupt and absolute power corrupts absolutely. To ensure this remains a theory in our discussion, we shall look at the compositions of the bodies that were stated earlier the see the various solutions to put in place.

Composition of the cabinet in Kenya

Taking a keen look at the cabinets in Kenya since the time of President Jomo Kenyatta, it is evident that a larger percentage of cabinet ministers and secretaries always hail from regions and ethnic groups that the president comes from. Let us start by looking at the previous cabinets before scrutinizing the current cabinet which is the elephant in the room. Joshua Daniel Otieno in his journal article, ‘Dynamics and Complexities of Forming the Executive Office: Analysis of Kenya’s Cabinet 1963-2018,’[7] gives an analysis of the cabinet based on regional and ethnic composition in a tabulated manner as seen below;

Table 1: Regional percentage representation in the cabinet 1963-2018

From the trend indicated above, it is evident that at President Jomo Kenyatta, central was the leading region with the highest number of representatives in the cabinet. When Moi got into power, the trend changed and since he hailed from Rift Valley, his region took the lead up to the time that President Kibaki got into power and the trend changed again in favor of Central.

When President Moi ascended into power in 1978, in the celebration of the Jamuhuri day on 12^th December 1994, he promised to follow in the footsteps of Kenyatta ‘fuata nyayo.’[8] This brought mixed reactions among the citizens of Kenya. Some thought that he would follow the virtues and forego the vices. To others, they remembered the time that Moi had wanted to resign to a point that he had written a resignation letter. Before handing in the letter, he went to consult his boss. Andrew Morton, the author of Moi’s biography, ‘The Making of an African Statesman,’ says that Kenyatta asked him who was born in charge of the police. Since at the time the ministry for Home Affairs was based under Moi, it was obvious that Kenyatta was instructing him to deal decisively with his opposers. This placed in a lot of worries among people that Moi could end up more tyrannical than Kenyatta.

The present cabinet is no lesser devil in its regional composition. The cabinet with the exclusion of the president and the deputy president is made up of 23 members.[9] This is because the office of the secretary to the cabinet is an office in the public service.¹⁰ This meets the provision of Article 152(1)(d) that the cabinet secretaries shall not be less than 14 and shall not exceed 22. The one more person is the attorney general. The author has done a computation of their regions of origin as shown below:

Though the trend has changed since the region that the president hails from comes in second, it is still factual as the region of the president and the deputy president have carried the day. The composition outrightly contravenes the Constitution as a region like North Eastern has no representative. This may create a feeling of exclusion among the ethnic groups from that region. To some point, this is a reason why the region has lagged behind in terms of development because they have constantly had the lowest number of representatives in the cabinet.

Article 1(2) of the Constitution of Kenya states that the people of Kenya may exercise their sovereign power either directly or indirectly through their democratically elected leaders. It is undebated that they do it mainly through representatives. This depicts an assumption that the pleas and prayers of the people from the northern part of Kenya shall not be addressed in cabinet meetings since it is only the wearer of the shoes that knows where it pinches the most. Can we then that the provision in Article 1 is nothing but a mere theory that still needs stringent measures to be put into practice?

The ethnic part of it is not left out. Changes in the ethnic composition of the cabinet have always followed the changes in the president. According to the 2009 census, at that time Kikuyu had the highest percentage in the cabinet at 17%, followed by Luhya at 14%, followed closely by Kalenjin at 11%, Luo and Akamba tied at 10% and the rest of the tribes shared the remaining. Luhya, Kikuyu, Kalenjin, Kamba, Luo, Kisii, Somalia, Mijikenda, and Maasai occupy almost 89% of the cabinet. Though somewhat proportionate, the representation shows low ethnic representation. The table below shows the ethnic composition of President Ruto’s current cabinet:

The present cabinet is still conforming to the patterns that ought to be regarded as archaic. Currently, there are 44 tribes in Kenya but only 10 out of all the 44 are represented in the cabinet. Numbers cannot be used as an excuse since the Constitution of Kenya treats all Kenyans as equal and it even seeks to protect the rights of marginalized ethnic groups. The composition contravenes the provision of Article 27(4) of the Constitution of Kenya which states that the state shall not discriminate directly or indirectly on grounds such as ethnic origin or language. In this instance, the state has discriminated the communities indirectly on the basis of their ethnicity, language, and their numbers.

In this sense, Ruto’s cabinet can be termed to be unconstitutional since it fails to meet ethnic and regional balance which is a little more than a bean-counting exercise. The blame goes greatly to the national assembly since it is their constitutional role to approve the cabinet secretaries appointed by the president by conducting a comprehensive investigation to ensure all the provisions of the law have been bumped into.[10] Article 94(4) further provides that the parliament of which the national assembly is part of by virtue of Article 93, shall protect this Constitution and promote democratic governance of the Republic of Kenya.

In the case of Marilyn Muthoni Kamaru v Attorney General, Justice chastised the national assembly for aiding and abetting President Uhuru in violating the Constitution by failing to conduct, during the vetting of the cabinet secretary nominees a strict scrutiny on the constitutional compliance of the composition of the cabinet for gender, regional and ethnic balance.[11] There is an urgent need for the parliament to enact legislations that will provide for the procedure of ensuring that we have diverse regional and ethnic representation in the cabinet so as to ensure there is  regional and ethnic integration. This will be a great milestone in our jurisprudence since the provision in Article 10(2)(d) on national values and principles of governance which includes sustainable development shall be achieved.

Composition of heads of state departments in Kenya

Article 155 of the Constitution of Kenya 2010 creates the office of the principal secretary and states that it is an office under the public service. To buttress the provision, in the case of Okiya Omtatah and another v Public Service Commission and 73 others, Justice Mrima stated that the office of the principal secretary is an office in the public service and not the cabinet. In the previous Constitution, the office was named the office of the assistant minister and was dubbed with roles that are almost similar to the ones played by the current holders of the office.

Kenya currently has 49 state departments and 51 principal secretaries. Considering the report that was given by the former Cabinet Secretary for Public Service and Gender Margaret Kobia before the Senate Committee on National Cohesion, Equal Opportunity and Regional Integration.  The report showed that a few communities had dominated the jobs in the civil service. It showed that out of the 51 principal secretaries, 13 were Kalenjins and they came from the Rift Valley and 13 others came from Central. This is so astonishing! If two regions have taken more than 50% of the positions in the office yet Kenya has 8 regions, how will we ensure equitable distribution of resources and development? To consider ethnicity, Kalenjin has taken 25% of the positions yet Kenya has 44 tribes. The mind of the drafters of the Constitution of Kenya 2010 contemplated that by expanding the positions in the national executive, then all communities in Kenya would at least have a representative irrespective of their numbers.

Sections 36 and 37 of the Public Service Commission Act sets out the criteria that should be used in appointing members of the public service.[12] Section 36(3)(d) of the Act states that in making appointments or promotions, the commission or the authorized officer are bound by the constitutional principles which require that there is a proportionate representation of all ethnic communities. The word to greatly put into consideration is ‘bound.’ The section further provides in sub-section 4 that for the purposes of ensuring representation of the diverse Kenyan communities in the public service, the commission or authorised officer shall, where necessary adopt affirmative action measures in line with Articles 27(6) and 56(C) of the Constitution. It is clear that by the virtue of discussing the national government, it raises a great necessity for consideration as stated in the section mentioned above.

Section 47(3) of the Public Service Commission Act further provides on the principles that should be considered when recommending persons to the president for appointment to the principal secretary and it states that:

The Commission shall, in making recommendation under this section, submit to the president a list of nominees for appointment, paying attention to inclusiveness in terms of gender, Kenya’s diverse communities, persons with disabilities and the youth.

 This law is shallow and blind as it just states without giving a criterion that can be used to ensure that the provisions are met. If there was a law, then we could not be handling the issue that is raising great tension in the legal field. Having a diverse representation in the national government has an uncountable number of pros. The main advantage is that we shall have great ethnic and regional integration that is always the basis for sustainable growth. Diverse teams are also more productive and perform better. This will also help us achieve the national value of sharing mentioned in Article 10 of the Constitution of Kenya 2010.

The courts should use the threshold that was viewed and stated by Justice Mrima in the case of Okiya Omtatah and another v Public Service Commission. Mrima J. stated that the process taken for the purpose of approving nominees was not cosmetic; it was a serious and mandatory process in which the national assembly ensured that there was compliance with the Constitution and the law in the appointment of the chief administrative secretaries. The national assembly ought to be that keen when conducting their approval duties and should ensure that the provision of Article 130(2) is met.

Conclusion

In 2016, in a presidential memorandum, President Barack Obama stated that research has shown that diverse groups are more effective at problem-solving than homogenous groups. And policies that promote diversity and inclusion will enhance our ability to draw from the broadcast possible pool of talent, solve our toughest challenges, maximize employee engagement and innovation, and lead by example by setting high for providing access to opportunities to all segments of our society.

It is the role of the courts to construe the Constitution. Article 259(1)(d) provides that the Constitution should be construed in a way that promotes good governance. One of the pillars of good governance is always an adequate representation of all social groups in a societal setup.

Let us remember that the mobilization of ethnic diversity and ethnic nationalism is a powerful tool required for development. It is our leaders who ought to be good at mobilization and they can only do so if they have a position in the national government. The ball is in our court. It’s either we score it by giving attention to the linkage between regional integration and ethnic diversity by ensuring appropriate and equitable representation or we give in to the consequences of tyranny that is caused by lack of diversity which is always the source of criticism of governmental wrongs.

The author is a first-year law student at Kabarak University. His research interests include but are not limited to transformative constitutionalism, dispute resolution, election law and policy.

[1] National Government Co-ordination Act No. 1 of 2013.

[2] Bhopal R. Glossary of terms relating to ethnicity and race: for reflection and debate: J Epidemiol Community Health, 2004:58:441-445.

[3] Article 11(1), Constitution of Kenya 2010.

[4] Article 11(2)(a), Constitution of Kenya 2010.

[5] H.W.O Okoth Ogendo, Constitutions without Constitutionalism: reflections on an African Political Paradox, American council of learned societies: New York (1988).

⁷ Elijah Maina Watatu v R, Nairobi CARCRA No. 102 of 1996(Omollo, Akuwami and Pall JJA) KLR

[7] J.M.D Otieno, Dynamics and complexities of forming the executive office: Analysis of Kenya’s cabinet 1963-2018, American Journal of Public Policy and Administration: New York, vol.3, issue 1 No.2 pp24 (2018).

[8] See ‘Moi’s Jamuhuri day speech,’ The Weekly Review (Nairobi) No. 252 (December 14, 1979) p.p6-7.

[9] Article 154(1), Constitution of Kenya 2010.

[10] Article 132(2), Constitution of Kenya 2010.

[11] Marilyn Muthoni Kamaru & 2 others v Attorney General & another, Petition No. 566 of 2012, Judgement (2016) eKLR

[12] Public Service Commission Act No. 10 of 2017.