This was a petition brought by two Kenyan organisations that support constitutionalism and open governance: the Katiba Institute and the Africa Centre for Open Governance (AfriCOG). They sued the attorney general and the public service commission, saying that more than 120 appointments to a variety of state corporations made by President Uhuru Kenyatta and members of his cabinet, were unconstitutional.
And as you read the judgment, you could be forgiven for thinking, at first, that the petition would fail. One leg of the argument by the institute and AfriCOG was that the appointments by the President and the cabinet were ‘appointments in the public service’. As such, only the Public Service Commission had the power to make these appointments.
By paragraph 65 (of a total of 122 paragraphs), the court had reached the conclusion that ‘positions in parastatals and state corporations are not positions in the public service’. As a result, a reader could well have thought this would be the end of the matter, particularly since the court’s next conclusion was that ‘appointments to parastatals and state corporations can only be made by the President or Cabinet Secretaries’.
What then, was left of the petition? – Quite a lot, as it turned out. For even if the president and cabinet were mandated to make these appointments, the question still remained whether they had done so in a constitutional way, said the court.
The two applicants argued that the statutes under which the appointments had been made were unconstitutional because they did not require that the appointments should be made on the basis of fair competition and merit.
On the other hand, the AG and the others involved in the matter, argued that the constitution provided this space for the President and cabinet members to make appointments to parastatals and state corporations ‘that would enable to government to deliver on the promises it made to the public.’ This was an argument with which the court did not agree, however.
Statutes that became law before the 2010 constitution was enacted did not directly stipulate the same requirements for appointment as post-constitutional laws, said the judges. But the court held that these older statutes ‘should be read with alterations and adaptations necessary to make [them] conform with the constitution’. Because they were to be read in this way, the court could not declare the appointments provisions in these laws, unconstitutional.
However, stressed the court, all appointments made in terms of these statutes had to comply with the requirements of the constitution that they be ‘open, transparent, competitive and merit’ based and that they should take into account ‘gender, ethnicity, diverse communities of Kenya and persons with disabilities’. If appointments were made without regard to these requirements, they would ‘run afoul’ of the constitution.
As to the post-constitutional statutes relating to parastatals, they would clearly have to comply – but in the case of the National Social Security Fund Act, for example, there was no such compliance requirement, and the court thus found the Act’s appointment provisions unconstitutional.
Similarly, the other contentious, post-constitutional legislation complained of, did not conform to the constitution. Most simply provided for an appointment mechanism, but did not require as the basis for appointment, that the process should be open, competitive, transparent and merit-based.
In the case of the Civil Aviation Act, for example, the appointment process seemed to comply with the constitution, but in the end only succeeded in ‘making hogwash’ and ‘a mockery’ of the constitution by giving ‘absolute discretion’ to the member of cabinet responsible for making the appointment.
The court found the appointment provisions of a whole slew of laws to be ‘constitutionally infirm’ because of just such shortcomings. Would that finding make appointments based on these sections unconstitutional?
According to submissions by the AG and those appointed under these laws, the President and cabinet had made these appointments ‘guided by the Mwongozo Code of Governance of 2015’. The appointments were made after considerations such as ‘ability to attract strategic partnerships for the entities and to deal with political issues and players.’ They also argued that ‘getting suitable persons may entail head-hunting.’
The court, however, noted that the constitution insisted on certain values and principles for the public service including ‘high standards of professional ethics; efficient, effective and economic use of resources;’ ‘fair competition and merit as the basis of appointment and promotion; representation of Kenya’s diverse communities’. These and other appointment criteria were to apply ‘to all state corporations’. So, did the 129 contentious appointments fulfill these requirements?
There was no advertisement for the appointments, nor were candidates interviewed before appointment. Absent these two features ‘it cannot be said that the requirements of competition and merit were complied with,’ the court concluded.
The respondents ‘did not even attempt to show there was any semblance of … transparency and accountability in the appointments. … It is plain that the President and the Cabinet Secretaries made the appointments without regard to the constitution and the statute [the Public Service (Values and Principles) Act], a move that also violated national values and principles of governance.’
The judges said they were not persuaded by the justification based on the Mwongozo Code. The 2010 constitution was tied to the views of ‘the people’ about how public appointments were to be made. These views were captured in the final report of the Constitution of Kenya Review Commission and the report of the committee of experts. What people wanted was the ‘re-establishment of the principles of public service, neutrality, impartiality and independence’. They wanted appointments processes that would give office to people ‘capable of guarding public wealth and resources.’
In an earlier case, the court had held that the 2010 constitution ushered in a new regime of appointments to public office. The three judges said they ‘entirely agreed’ with that earlier court when it said that the past had been characterised by ‘open corruption, tribalism, nepotism, favouritism, … [and] political patronage.’ A break from the past was required, with the constitution indicating ‘the end of a “jobs for the boys” era.’
Judges Lesiit, Mwita and Njuguna repeated that the people of Kenya ‘desired that appointments be made in an open, transparent and inclusive manner taking into account the marginalised, and people with disabilities. They deserve no less. They are entitled to their wish as a matter of right and not privilege. It is a constitutional compulsion.’
Since the appointments complained of did not comply with these principles, they were unconstitutional and invalid.
This is one of several cases in which actions by the President have been declared unconstitutional by the courts. Like the others, it is sure to be appealed and ultimately end at the supreme court. Like the most recent previous case where the high court’s constitutional division held that a major raft of constitutional amendments was unconstitutional, the justification here was that the President acted in his wisdom to build bridges and heal divisions in Kenya’s political life. Whether the supreme court will find that enough to counter findings of unconstitutionalism remains to be seen.