There are major implications of the decision of the court on the Chief Administrative Secretaries question, whichever way it goes.
Should the court refuse to agree with the Law Society of Kenya and active citizens and solemnise the positions, then it will send a clear signal of embrace to the Executive, sanctioning all manner of stretching of the limits of the law and committing every conceivable impunity.
In our view, the government, through the Public Service Commission, violated the laid down procedures in creating the public offices and that should count for something.
It was sanctioned by the Head of Public Service to create 23 positions, but the PSC went ahead and created 27 more positions to a total of 50.
If the court allows this egregious illegality to stand, then the new administration will be emboldened to manipulate the law and sacred processes as much it wants to achieve whatever ends it desires, and that is unacceptable.
However, if the courts invalidate the positions, the appetite of the government to violate the law with impunity will be slowed down, and that is good for Kenya.
That decision will be bold and precedent-setting, sending the message that the courts remain the vanguard of the rule of law.
It would also make the powers that be wake up to the reality that checks and balances exist and that whatever their decision, it must pass constitutional muster. It is only the courts that can deliver this message.
So for now, it is a matter of wait and see in relation to what the court will do. But our hope is that the court sides with the public and the rule of law.
It is important that a stern message is sent to the Executive that there is a line in law that, if crossed, consequences abound, including reversing of the decision.
It is important because the message would impact other litigations that will come forward, including the one involving admitting strangers to the cabinet.
President of the LSK spoke to the Star
