Appeals Court declines to suspend judgment that rendered Ruto's advisors jobless

President William Ruto's advisors will remain in the cold after the Court of Appeal declined to freeze the High Court judgment that rendered them jobless.

Justices Weldon Korir, Hedwig Ong’undi and Stephen Okong’o unanimously ruled yesterday that there was no justification to suspend Justice Bahati Mwamuye’s verdict until the appeal application filed by the Attorney General is determined.

They said they would give their full ruling at a later date.

“Upon consideration of the application, we decline to issue an interim order staying execution of the High Court's judgment pending our ruling,” the bench headed by Justice Korir ruled.

Justice Mwamuye directed that the Attorney General and the Public Service Commission (PSC) immediately stop payment of salaries to Prof Makau Mutua, Dr David Ndii, Prof Edward Kisiang’ani, Dr Monica Juma, Joseph Boinnet, Jaoko Oburu, Dr Silvester Okumu, Harriett Chiggai, Maj (Ret) Mahat Somane, Prof Abdi Guliye, Dr Dominic Menjo, and Dr Nancy Laibuni. Others are Kennedy Ogeto, Sylvia Kang’ara, Augustine Cheruiyot, Henry Kinyuai, Joe Ager, among others.

Shockingly, some Sh2.44 billion has already been gobbled up by these advisers, without the involvement of the Salaries and Remuneration Commission (SRC), to establish whether the salaries were a waste of public resources or within fiscal limits.

While agreeing with lawyer Lempaa Suyianka and the Katiba Institute that Ruto created offices that handpicked the advisers, the judge said the government did not check whether their work duplicated the functions of Cabinet Secretaries, the Attorney-General, Principal Secretaries, Ambassadors or High Commissioners.

Justice Mwamuye stated that although the move to appoint the advisers was meant to deepen the capacity of government, the exercise was vague, conducted in secret, and a violation of the Constitution.

READ: Ruto's advisors rush to court to stop ruling that killed their jobs

Justice Mwamuye said that CSs, PSs, High Commissioners and Ambassadors are hired and paid to advise the President. He added that the appointment process is competitive and that they have clearly defined roles.

However, for the advisers, he said the office of an adviser to the President should equally be subjected to the same process as that of other officials.

At the same time, Justice Mwamuye said the appointments violated the principles of competition and merit, as the positions were never advertised.

“Specific individuals were simply named by the President’s Executive Office and thereafter appointed as fait accompli. This is precisely the handpicking or jobs-for-the-boys culture that Article 232 was designed to eliminate.”

“The Constitution of Kenya 2010 introduced clear criteria for appointments to State and public offices to replace the old order of ethnicity-driven appointments, politicisation of the public service, cronyism, and recycling of persons who had been rejected by the electorate at the ballot box — an order that was much maligned and resoundingly rejected by the people of Kenya when they promulgated the 2010 Constitution,” said Justice Mwamuye.

According to the judge, the President ought to have consulted the PSC and the SRC to ensure public funds were being spent responsibly.

He said there was a need to establish from the SRC whether the work done by the 21 advisers duplicated existing roles, and for the PSC to conduct a needs assessment before any hiring process.

“The process followed was the antithesis of transparency. It was conducted through confidential correspondence, with details of positions, criteria and salaries undisclosed to the public. It was the very definition of an opaque process.”

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He directed that the Attorney General and the PSC should immediately stop payment of salaries to the advisers.

At the same time, he ordered that the commission should, within 90 days, conduct an audit of all offices created by the President since the promulgation of the Constitution in 2010 and verify their compliance with the PSC Act and the Constitution.

Mutua and Ndii’s team were not the only casualties, as the court widened the net by requiring the PSC, after the audit, to abolish all offices found to have been established unconstitutionally or unlawfully. It is required to report within 120 days on compliance.

In this case, Katiba argued that the President has no role in directly hiring people to work in his office or government. Katiba’s lawyer, Joshua Malidzo, told Justice Mwamuye that the President had embarked on an unconstitutional path.

“When a President embarks on a potholed constitutional journey meant to undermine the Constitution, he needs to be stopped in his tracks before any further damage to the Constitution,” argued Malidzo.

On the other hand, Lempaa said the President had created positions that were illegal and were being abused to shelve rejects.

Lempaa stated that the law does not allow any hiring at State House other than positions reserved for the personal employees of the President.