Ruto Ignored AG Muturi’s Advice Against Including ‘Strangers’ In Cabinet Meetings – LSK President Says

Written by on 6 July 2023

President William Ruto may have ignored the Attorney General’s advice against including three advisors and a party secretary general from attending Cabinet meetings.

According to the Law Society of Kenya (LSK) president Eric Theuri, AG Justin Muturi wrote an advisory to the president last December informing the head of state of the illegality of such a move.

“I’m aware that the Attorney-General in December gave an advisory against this move. It is a question of government being given advice but refusing to heed it for political consideration,” Theuri said on Citizen TV’s Day Break show on Tuesday.Pressed further by the host Sam Gituku on whether this was made public or it was straight to President Ruto, Theuri said; “It was to the president… but we are in a legal ecosystem so we know what is happening.”

On July 27, President Ruto cleared presidential advisors Monica Juma (National security), David Ndii (Economic affairs), Harriette Chiggai (Women affairs) and UDA Secretary General Cleophas Malala to be attending meetings of the highest decision-making organ in the country. 

The move raised questions from a section of legal experts, especially coming barely two years since the court found similar actions by his predecessor, Uhuru Kenyatta, to be unlawful.

According to Article 152 of the constitution, the Cabinet comprises 25 members; the President, Deputy President, the Attorney-General and up to 22 Cabinet Secretaries.

Theuri revealed that an LSK member has already moved to court to challenge the inclusion of the four – who have already taken their oath of secrecy – in Cabinet meetings, which he labelled “mischief that is not going so far.”

In September 2020, then Kandara MP and current Water Cabinet Secretary Alice Wahome petitioned the clearance of then-Nairobi Metropolitan Services (NMS) Director General Mohamed Badi to attend Cabinet meetings at the High Court.

And in his ruling, Justice Anthony Mrima found that “as a result of taking of the oath of secrecy, General Badi effectively became a member of the Cabinet.”

Mrima found that the Constitution, “does not accord the President any powers to appoint anyone into the Cabinet, (beyond as provided by the constitution),” finding that Badi’s participation was in violation of the Constitution.

At the same time, Theuri castigated the Energy and Petroleum Regulatory Authority (EPRA) for increasing fuel prices after amending the Value Added Tax (VAT) requirement on fuel from 8% to 16%, which is in defiance of a High Court ruling that barred the implementation of the contentious Finance Act, 2023.

Lady Justice Mugure Thande on June 30 ruled to suspend the implementation of the Finance Act, following a petition by Busia Senator Okiya Omtatah challenging the Act.

“There is an application that was set aside the orders given by Justice Thande suspending the implementation of the Finance Act,” he said, adding that EPRA’s decision to review fuel prices even after the suspension might have been pegged on the hope that the High Court might overturn the decision.

“The right thing to do is comply with that decision and then challenge it if you feel the decision has been made wrongly,” said Theuri.

He said EPRA should compensate those who paid more for fuel than they ought to have paid.

-‘Renegade government’-

These instances, coupled with the appointment of 50 Chief Administrative Secretaries (CASs) by President Ruto which the High Court on Monday declared unconstitutional, paint President Ruto’s government in a bad light, Theuri said.

“It makes the government look like it is a renegade government because it is being given proper legal advice and refuses to take it,” he argued.

The court on Monday ruled that public participation in the creation of the CAS post was only conducted for 23 occupants and the creation of the additional 27 occupants did not adhere to the constitutional requirement of public participation. 

Acknowledging that the CAS position was abolished last year, the court said; “Once that office was abolished on 21 September 2022, the newly-created office and complement of 23 office holders could no longer benefit from that stay.”

The 50 CASs were sworn in by President Ruto on March 23 after the National Assembly declined to vet them saying it had no constitutional authority to do so.

The High Court later issued orders barring the CASs from assuming office pending the hearing and determination of the petition. The court also barred the appointees from earning a salary, remuneration, and any benefit pending the conclusion of the case.

According to Theuri, acting contrary to decisions that have already been made by the court, “sends a message that this is a renegade government that will not comply with court decisions that do not comply with your political considerations.”

In the meantime, some of the CAS nominees have since vowed to appeal the High Court’s ruling.

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