ARTICLE 10

Cabinet Secretaries should keep off BBI

They are state officers, cannot get into political activities

In Summary
  • Both the High Court and the Supreme Court determined that Cabinet Secretaries being state appointees should not participate in political activities
  • Any state officer who participates in the activities of BBI is in contravention of the Constitution
Lawyer Nelson Havi
Lawyer Nelson Havi

There are two categories of leaders in Kenya. One, there are elected leaders who are entitled to politick and formulate agenda and policies of governance.

There is a second category of appointed leaders who are prohibited by the Constitution to participate in any political activities.

This is not a new matter. In 2016 and 2017, there were Cabinet Secretaries who were actively involved in the campaign aligned to one of the major political coalitions. This matter went before the High Court and the Supreme Court.

Both courts determined that Cabinet Secretaries being state appointees should not participate in political activities.

Now, looking at the Bulding Bridges Initiative (BBI) issue, it is a political initiative towards providing a better solution to the political problems bedeviling Kenya.

 

The individuals who were initially appointed by President Uhuru Kenyatta and former Prime Minister Raila Odinga to undertake the BBI inquiry were not state appointees. They were either political leaders  or professionals outside of government.

The Kisii launch of BBI was attended by a senior Cabinet Secretary. If we are to apply the law, it becomes quite clear that any state officer who participates in the activities of BBI is in contravention of the Constitution, in particular, Article 10.

That is a failure that must be brought to the attention of the two BBI principals – Raila and Uhuru. This is because state officers must limit their activities to the role of assisting the government within the parameters of the work limitations that applies to them. They cannot get into political activities.

Yes, it may be argued that the document belongs to the Executive, but Cabinet Secretaries must find a dichotomy with the office of the Executive. President Kenyatta was elected. The moment he was elected, he became the chief executive of the country.

But he must separate his role as the chief executive from his role as a politician. There is work he can allocate to people within government - who are state officers - and work that he can allocate elected leaders or people with diverse expertise in whatever field of governance. You cannot mix the two.

The lawyer spoke to the Star