Blow for Ruto as court declares Climate Council appointments unconstitutional

The High Court has declared President William Ruto’s nomination of four individuals to the National Climate Change Council (NCCC) unconstitutional, illegal, and procedurally flawed.

Delivering the judgment on Friday, Justice Lawrence Mugambi found that the appointments of Emily Mwende Waita, John Kioli, Umar Omar, and Dr. George Odera Outa violated the Constitution due to a lack of public participation and failure to include marginalized communities.

The court ruled that the nominations did not meet the constitutional threshold for public engagement, rendering them null and void.

“There was apparent disregard for public participation in this matter. The nominations were thus unlawful and unconstitutional, null and void," Justice Mugambi ruled.

The court found the entire process shrouded in secrecy and lacking stakeholder engagement, especially among civil society and marginalized communities, who are crucial stakeholders in climate governance.

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"There was no evidence of stakeholder engagement, and the respondents, including the Attorney General, failed to demonstrate how public involvement was conducted, as required by law," the judge ruled.

Citing Article 10(2) of the Constitution and Section 24 of the Climate Change Act, Justice Mugambi emphasized that the appointments did not comply with the legal standards for transparency and inclusivity.

“Since the court finds the nominations were invalid, a declaration is hereby issued that the process of nomination of the four did not comply with the principle of public participation,” he stated.

 As a result, the court quashed their nominations and restrained the four individuals from occupying office within the NCCC.

“A permanent injunction is hereby issued directing the second respondent (NCCC) to desist or refrain from accepting, allowing, or permitting Emily Mwende Waita, John Kioli, Umar Omar, and Dr. George Odera Outa from assuming or holding office,” the court ruled.

Further, the court directed that a fresh nomination process be conducted within 90 days. 

This new process must fully comply with constitutional requirements, including public participation, transparency, merit, and competitiveness.

“The process of nominating and/or making appointments… must be undertaken within 90 days from the date of this order in strict compliance with Article 10(2) of the Constitution,” the judge ordered.

This decision followed a petition filed by the Mt. Kenya Network Forum and the Indigenous Peoples' National Steering Committee on Climate Change (IPNSCCC).

The groups, represented by lawyer Henry Kurauka, argued that the nominations were carried out in secrecy and without consultation with civil society organizations, indigenous communities, or other stakeholders affected by climate policy.

In an affidavit filed by Mt. Kenya Network Forum Executive Director, Sifin Kariuki Kiboi, the petitioners claimed that there was no meaningful public engagement before the nominations were made.

Kariuki further asserted that the council's mandate requires representation from civil society and marginalized communities, groups that were excluded from the process.

In response, the Attorney General argued that the petition was premature and should be dismissed, citing the doctrine of separation of powers and asserting that parliamentary vetting had not yet been completed.

However, the court dismissed this argument, referencing Article 165(3) of the Constitution, which grants the High Court authority to determine the constitutionality of laws and actions.

“It is not the vetting and approval by Parliament that the petitioners objected to,” Justice Mugambi clarified.

“Rather, they question the process preceding the nomination, which clearly falls within this court’s jurisdiction.”

“This court has jurisdiction to intervene where an alleged violation of constitutional principles or law is demonstrated... The matter is ripe because it is questioning the process.”

The court emphasized that the central issue was the failure to uphold public participation, a key governance principle under Article 10 of the Constitution while Section 24 of the Climate Change Act also mandates public consultation in climate-related decision-making processes.

While the government pointed to Section 7 of the Act as the basis for the appointments, the court found no evidence that the process was open or inclusive.

“The criteria for the selection process of the nominee to represent civil societies was evidently not widely consultative and participatory, even within the organization itself,” the judge stated.

Regarding the appointment of a representative for marginalized communities, another legal requirement under Section 7(h) of the Act, the court found the process similarly lacking.

“No criteria that would guarantee fairness and merit-based identification of the representative of the marginalized communities was disclosed,” Justice Mugambi noted.

The four nominees had been appointed as part of President Ruto’s strategy to strengthen climate action. 

The NCCC, established under the Climate Change Act of 2016, is mandated to oversee climate change policy implementation, manage climate-related funds, and integrate environmental considerations into national development plans, including the education sector.