GHAI & EKIRU: Cabinet, public service and confusion

 

Parliament (at the national level) makes law; that we all know. But law only works if it is obeyed, and quite a lot of it will not work if there is no-one with the responsibility to try to ensure that it is obeyed.

This is the responsibility of a many people – from those who operate the criminal justice system (like the Director of Public Prosecutions, and police), to those who manage institutions like the Teachers Service Commission, the management of hospitals, the public service that carries out the day-to-day work of ministries and various government agencies, the Public Service Commission  that manages the public service and so on.

Although most of us probably do not realise how many of these people there are (about one million) we have no confusion about their roles. We would all probably realise that they mostly have careers in the public service, and do the same job whoever is President.

Historically in Europe public servants advised the monarch and held their positions only so long as the monarch wished – at least in the UK. It was only in the 20th century that they got any security of tenure. In Kenya they have protection similar to other employees under the Employment Act.

But when it comes to the top people in the system things get a bit confusing.

The Executive

The Constitution defines the “Executive”: the President and the Deputy President and the Cabinet Secretaries (CSs). There must be no more than 22 of these last (and no fewer than 14). They hold the positions that we used to call “Ministers” under the old Constitution. That is the entire executive under the current Constitution.

CSs are appointed by the President who may also dismiss them. There is no limit to the reasons that the President may have to dismiss them. In this sense they are like the old ministers – they hold office as long as it suits the President, but he can sack any (or all) of them if he feels he can no longer trust or work with them, for example. And no procedure is given for sacking them. This makes it clear that this is a political appointment. And these are not “civil servants” as one newspaper suggested.

On the other hand, the National Assembly may pass a resolution that a CS must be sacked but this can only be for a serious reason, and after a careful process giving the CS the chance to defend him or herself.

However, the South African Constitutional Court implied that the President does not have a completely free hand when it said “There are no constitutional constraints on the President on how that power is to be exercised …, as long as the exercise of such power is rational.”

At the county level in Kenya the Employment and Labour Relations Court has held that county executive member cannot be dismissed without a fair hearing. This seems to treat members of the county government like members of the public service. How far should courts go in inquiring into political decisions? How far can a court decide whether a political decision of this sort is rational?

Principal Secretaries 

Each department has a PS at its head. These used to be called “Permanent Secretaries” (a rather useless change of term by that Parliamentary Select Committee that did so many generally negative things to the draft Constitution early in 2010.)

The PSC receives applications and makes a short list which goes to the President. The President chooses PSs from that list and then appoints them – but the appointments (like those of CSs) must be approved by Parliament. The President may reassign a PS – move that person to another suitable post at the same level – and may also sack a PS (Art. 132).

This makes PSs somehow a bit hybrid: the President has input into the appointment but, though he may be motivated by some political considerations, the PSC should appoint people able to do the job.

The constitution itself is rather unclear about the position of PS. It says this is an office in the public service (Art. 155(1)). But when it defines “the public service” it says it is all individuals performing a function within a State organ (and a department is a state organ). But it also says that a State officer is not in the public service, and that PSs are state officers.

And the PSC runs the public service, and exercises discipline over it and can sack its members – but not if they are state officers.

The Employment and Labour Relations Court held that a PS could not be unceremoniously dismissed (which in principle seems good). The court said that Article 236 says that a public officer must not be dismissed with the “due process of law”.

But this appears under the heading of “Public Service Commission” and as we have seen it is the President not the PSC that may dismiss PSs. That court also said that Article 135 says that presidential decisions are “to be made and reasons given under the hand of the President.” But while Article 135 says presidential decisions must be in writing with “seal and signature of the President” it says nothing about reasons.

Interestingly, CSs do not seem to have any power over PSs’ appointments or dismissal – significant because they are the people who have to work closely with their PSs. Incidentally, in the UK Minsters may sack Permanent Secretaries but this can be severely criticised for intimating the public service into not voicing critical opinions. Who can tell Kenyan CSs what they do not want to hear?

Chief Administrative Secretaries

The position of CASs is relatively new one in the Kenya’s governance architecture. It was introduced by the former President, Uhuru Kenyatta, during his tenure in office. The mandate of CASs was “broadly designed to enable them to assist the Cabinet Secretaries to better coordination and the running of the affairs of their respective ministries.”

In reality the post seems to have been created as much to reward the President’s close allies- especially those who lost an election while campaigning for the President, as to assist CSs.

The post has been the subject of court challenges. Under President Kenyatta the High Court found it was unconstitutional - particularly because of want of public participation.

In September 2022, the PSC abolished the CASs offices, and subjected what was now President Ruto’s plan to public participation.

Most respondents opposed the reintroduction of CASs positions due particularly to the cost. But public participation is or should be input into decision making but is not decisive.

The President, in February 2023, wrote to the PSC requesting the increase of the number of CASs from the initial 23 to 50. The PSC complied.

The court found that public participation had taken place in respect to the initial 23 CASs positions, but there was no public participations on the additional 27 positions. The court declared these positions unconstitutional.

The court referred to the Kenyan constitution making process and pointed out that one aim of the 2010 Constitution was to curtail the President’s discretion in creating “unnecessary offices.”

The court held that the position of CASs is similar to “assistant minister”, but that a deliberate decision was made not to include such a position in the final constitution. So not just the 27 but all the 50 CAS posts were unconstitutional.

This decision – unless it is overturned by a higher court – does remove a complicating factor from our system of administration. As the court pointed out, the post of CAS came between that of CS and PS. Both are state officers. The CASs were not.

The High Court also observed that the Committee of Experts said that Kenyans had wanted a clear distinction between offices of state and those of government. It is not clear that at present that distinction is clear in the minds of government itself, the media or the courts – nor always in the constitution.       BY THE STAR