Strangers in Cabinet? Questions over Ruto's move to allow 4 four more people to attend meetings

Did President William Ruto violate the Constitution in allowing three advisors and the United Democratic Alliance (UDA) Party Secretary General to sit in Cabinet meetings?

A section of legal experts have questioned the President’s actions barely two years since similar actions by his predecessor, Uhuru Kenyatta, were found to be in violation of the Constitution.

The taking of the oath of secrecy by presidential advisors Monica Juma of national security, David Ndii of economic affairs, Harriette Chiggai of women rights, and UDA Secretary General Cleophas Malala was the culmination of many months of consultations on how best to enjoin some of the advisors in Cabinet meetings.

The Constitution in Article 152 enumerates members of the Cabinet to be the President, Deputy President, the Attorney General and Cabinet Secretaries limited to between 14 and 22.

This gives a total of 25 members of the Cabinet; the three advisors and a Secretary General are none of the 25.

Article 154 further establishes the office of Secretary to the Cabinet, whose role is to arrange business of the Cabinet, keep the minutes and communicate decisions of the Cabinet to appropriate authorities.

With the oath of secrecy by the four new participants, questions abound over their place in law.

Three years ago, then Kandara MP and current Water Cabinet Secretary Alice Wahome petitioned the High Court, questioning the clearance of then Nairobi Metropolitan Services (NMS) Director General Mohamed Badi to attend Cabinet meetings.

Justice Anthony Mrima found that “as a result of taking of the oath of secrecy, General Badi effectively became a member of the Cabinet.”

Mrima found that the Constitution, “does not accord the President any powers to appoint any one into the Cabinet,’ finding that Badi’s participation was in violation of the Constitution.

While the President is free to pick any person as an advisor, their participation in Cabinet meetings is uncharted.

The three will be attending meetings where Cabinet Secretaries who are lead advisors of the president in their line ministries will also sit.

They include Defence CS and Interior CS on the national security front; Treasury CS on the economic planning and the public service; Affirmative action and gender CS on women affairs.

Justice Mrima in September 2021 found that the Badi inclusion in Cabinet meetings was masked in secrecy, lacked transparency and that since he was never vetted by the National Assembly before sitting in Cabinet, there were no means of oversighting him.

Mrima found that his term of office in Cabinet was an illusion and that he was a stranger in Cabinet. The High Court decision was never challenged and Badi immediately ceased attending Cabinet meetings, at least officially.

Currently, Chief of Staff and Head of Public Service Felix Koskei also attends Cabinet meetings. There is no constitutional provision allowing or requiring him to sit in Cabinet or attend Cabinet meetings.

For now, the decision to co-opt the three advisors and a Secretary General in Cabinet meetings will stand, but may be challenged in court.

Were that challenge to succeed, questions abound as to the fate of decisions arrived at by the Cabinet in the presence of the four, for now questions are on the scope of the participation of the four in deliberations and decision making.