Lawyers have expressed mixed views on the legal anchorage of ANC leader Musalia Mudavadi’s new office as Prime Cabinet Secretary.
While some believe the office is built on quick constitutional sand that can be knocked off easily by a court petition, others assert that the office is legally fortified.
President William Ruto announced his Cabinet on Tuesday, naming Mudavadi as Prime Cabinet Secretary.
His roles are to coordinate government projects in liaison with the Ministry of Interior, oversee government’s legislative agenda and coordinate technical evaluation of government policies and programmes.
Ruto also created two Cabinet-level offices that include National Security advisor and Women Rights’ Agency advisor, to be occupied by Monica Juma and Harriet Chiggai respectively.
Former LSK president Nelson Havi told the Star Mudavadi’s new office is one of the 22 Cabinet secretary slots envisioned in the Constitution, hence lawful.
He said the President has the latitude of naming the Cabinet dockets as he chooses in line with his vision for the country.
“Whatever the name one calls the docket, it is a Cabinet Secretary’s office. You may prefer prime or chief or first Cabinet secretary. It does not matter as long as it is one of the 22,” Havi said.
“So it is not a prime minister in the strict reading of that office or law. It is a Cabinet secretary like any other.”
Havi said any argument that the office has illegality issues has no merit.
Constitutional lawyer Bobby Mkangi agrees.
He said it is the president's mandate to appoint Cabinet secretaries, deploy them, give them functions and responsibilities of which at the end of the day they are responsible individually and collectively as a team.
“As long as the Prime Cabinet Secretary is amongst the maximum of 22 and it is a Cabinet secretarial portfolio with the functions and responsibility as apportioned by the president," Mkangi said.
"If it is outside the remit of a Cabinet secretarial portfolio then that will be strange to the Constitution.”
But law scholar Ben Shihanya told the Star the new office has been created without any public participation and has not originated from a recommendation by the Public Service Commission, hence irregular.
He said the President finds himself in a tight corner as there are competing interests he seeks to satisfy.
Shihanya said it would have been easier for him had the constitutional amendment through the Building Bridges Initiative succeeded.
“It is a mischief that BBI sought to cure. Now he is introducing that wisdom through the backdoor. The BBI wanted to tinker with the law to accommodate the interest he is grappling with now,” the professor said.
Shihanya believes any citizen can approach the courts to have the post declared unconstitutional.
For constitutional lawyer Waikwa Nyoike, the Cabinet as announced by Ruto was unconstitutional and the National Assembly should return it to him without opening debate.
He said the new administration was amending the Constitution through the back door.
Nyoike said besides the failure to achieve regional, ethnic and gender balance, the two Cabinet-level offices were illegal.
“The two Cabinet-level portfolios are unconstitutional, because they are illegally and irregularly created. Ruto lacks powers to unilaterally create such positions," he said.
"In fact, it is a one-man backdoor amendment of Katiba (Constitution) and Parliament must return the list to him without debate.”
LSK president Erick Theuri said while the creation of the office was lawful as it falls within the powers of the head of state, it would be difficult to see its efficiency.
He said the roles of the office outlined by the executive order are overlapping with those of the deputy president.
Theuri further said it would be difficult to assess it achievements because it does not have a specific docket it oversees.
"The president has the prerogatives to create the office. But given that it does not have specific dockets assigned to it, it would be very difficult to assess its value for money and effectiveness," he said.
(Edited by Bilha Makokha)