- If the CAS positions have to come back, it has to be by way of Constitutional amendment and not Executive fiat.
- It was wrong when retired President Uhuru Kenyatta made the appointments and also illegal when Ruto followed suit.
The High Court on Monday dealt President William Ruto a blow when it ruled that the creation of the CAS positions was unconstitutional.
The verdict attracted varied reactions from a cross-section of Kenyans among them constitutional experts.
Lawyer Paul Mwangi said a Constitutional amendment is needed if the CAS positions have to make a comeback in the Executive.
"If the CAS positions have to come back, it has to be by way of Constitutional amendment and not Executive fiat," he said.
He explained that if Ruto strongly believes the positions are necessary, he should first make his case to the people of Kenya.
"He should make Kenyans see why these seats are necessary because they are the people who will decide if they will amend the Constitution to provide for the positions," he said.
He said the drafters of the 2010 Constitution did not see the need to have deputies for Cabinet Secretaries although a case has been made previously on why they are needed.
The President appointed the CASs on March 22, 2023, from a list shortlisted by the Public Service Commission (PSC).
They were initially expected to undergo vetting but the Speaker of the National Assembly Moses Wetang’ula referred back to the Head of State noting that the August House has no constitutional authority to vet the CAS nominees.
The High Court stopped the 50 CAS from assuming office pending the hearing and determination of a suit filed by the Law Society of Kenya (LSK) and the Katiba Institute.
Mwangi said the President must also be clear on the maximum number of CASs that could be appointed at one given time.
The lawyer explained that it would be illogical for the Constitution to give a limit for the number of CSs but allow the President to appoint any number of deputies.
Article 152 of the Constitution prescribes the number of Cabinet Secretaries be not fewer than 14 and not more than 22.
The law also eliminated assistant ministers. Before, the president was free to appoint as many ministers and assistant ministers as he wished.
Mwangi said retired President Uhuru Kenyatta was wrong when making the appointments and that it was also illegal when Ruto followed suit.
"It was wrong for Uhuru then, it was wrong for Ruto now," he said.
Mwangi said Ruto did exactly what people used to complain about— creating positions of assistant ministers that bloat the executive with little restrictions on numbers.
Both Ruto and his predecessor have been seen to use the CAS positions to reward loyalists who lost elections and did not make it to Cabinet.