- Milimani Judge Anthony Mrima quashed the decision as contained in Executive order.
- Says the basis on which the decision to include Badi into the Cabinet was made is not clear.
Image: WILFRED NYANGERESI
President Uhuru Kenyatta has been dealt a major blow after the High Court dismissed as illegal his decision to appoint and include Major General Mohamed Badi into Cabinet meetings.
Milimani Judge Anthony Mrima quashed the decision as contained in Executive order No. 3 of 2020 and issued another order prohibiting Badi, Nairobi Metropolitan Services director general, from attending any Cabinet meetings or discharging any functions of the Cabinet.
Mrima in his judgment said the basis for which the decision to include Badi into the Cabinet was made was not clear.
His mandate and role in the Cabinet are also unknown or at least Attorney General Kihara Kariuki and the Secretary to the Cabinet chose not to disclose as much, he said.
“It seems like the decision is masked in secrecy and, therefore, lacks transparency. Badi is hence a stranger in the Cabinet," he said.
According to the court's findings, a careful reading of Article 132 of the Constitution does not accord the President any powers to appoint anyone into the Cabinet. The article stipulates the functions of the President.
The AG, the Secretary to the Cabinet and Badi were listed as respondents in the case. They had relied on the said provision, saying it gave Uhuru the discretion to require the attendance of any person at Cabinet meetings.
But Mrima said the composition of the Cabinet is purposely ring-fenced and insulated to consist of only the President, the Deputy President, the Attorney General and the Cabinet secretaries.
“If Kenyans had wanted to credit the President with the discretion to appoint any other person or persons into the Cabinet, I believe the Kenyans would have expressly stated so in the Constitution,”
The case was filed by Kandara MP Alice Wahome, who challenged the constitutionality of the decision to appoint and include Badi into the Cabinet and its committees.
According to her, the state bypassed the Constitution.
Mrima agreed with the lawmaker, saying there is no doubt the appointment was not approved by the National Assembly.
“As such, it is unclear as to by whom and how Badi will be overseen. His term of office in the Cabinet also remains an illusion,” the judge said.
He also said the retention of Badi into the Cabinet raises far too many unanswered questions as he finds no justification in the decision to include Badi into the Cabinet.
“For instance, one may ask why Badi and yet there are so many other director generals or heads of public institutions in the country."
Such questions and many others would have easily been answered had the process towards the inclusion of Badi into the Cabinet been transparent and based on clear provisions of the Constitution and the law, he said.
-Edited by SKanyara