The history of the office of CAS was fairly recent having been first established on January 24, 2018.
However, on April 20, 2021, the High Court in the Okiya (Omtata) case declared the office to be unconstitutional. The main appeal was pending. The stay did not reverse the findings or declarations or orders of the High Court, that the office of the CAS, as then constituted, was unconstitutional.
Article 132(4)(a) of the Constitution expressly granted the President power to create an office in the public service. But in doing so, he and the PSC were bound to follow the requirements of the Constitution.
The newly created office of CAS fell somewhere between two constitutional or State offices: that of the cabinet secretary (CS) and that of the principal secretary (PS). Those two officers underwent vetting and approval by Parliament but the CASs had been appointed and sworn into office without parliamentary approval.
Not every holder of high or State office underwent parliamentary approval. The CASs were, for all purposes, assistant cabinet secretaries reporting directly to the CS. The PS was relegated to the position where he reported to the CAS and the CS.
Doubt was completely removed by their job description in Gazette Notice No 12432 of October 12, 2022, and duties specified therein, and the fact the CAS would be in a higher job group CSG 3 than the PS.
Whereas the President could establish a State office within the ranks of the public service, it required approval by the National Assembly.
Such approval could be achieved by enactment of a statute, which provided for the same and further provided an appropriate framework for a cap on the numbers of CASs if necessary. The newly created office of CAS did not meet the constitutional threshold.
Kenya had for many years a Cabinet consisting of ministers and assistant ministers whose composition or numbers was largely at the discretion of the President.
The public clamour for control of the size of the Executive was reflected in the Draft Constitution of Kenya 2004 by the Constitution of Kenya Review Commission.
Therefore, the creation of a similar office to the assistant minister, in the name of CASs, could not be created in the manner the President and the PSC proceeded.
It was not the intention of the framers of the Constitution to have 50 CASs deputising 22 Cabinet secretaries.
An abridged version of the High Court CAS ruling
