The TPLF cannot survive a day without its hypocrisy

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There are at least four reasons why President William Ruto’s cabinet is unconstitutional. First, the cabinet does not respect the basic composition rule of no more than two-thirds of the same sex. Second, the cabinet fails the test of Article 130(2) which requires the national executive to reflect regional and ethnic balance. Third, some cabinet members are failing chapter six of the constitution’s test of leadership and integrity, tainting the entire cabinet. Fourth, and finally, the creation of two cabinet-level portfolios is not only illegal but also outrages women, contrary to article 28 of the constitution.

I won’t discuss Chapter Six issues in this article, as they alone require acres of space. I discuss the other three.

Two-Thirds Gender Rule

It is unfortunate that in 2022, a cabinet formed by a president who constantly shouts about his belief in the rule of law, fails to meet the bare constitutional minimum of no more than two-thirds. It is both a mathematical question and a question of constitutional subterfuge.

First, the math problem.

Section 152(a) clearly defines and limits the composition of the cabinet. The Cabinet consists of the president, vice president, no more than 22 cabinet secretaries, and the attorney general. Essentially, the cap is 25 members. No more. But that number could be lower, as the president can appoint as few as 14 cabinet secretaries. Ruto has used all of his 22 cabinet cards and more. The most — two positions — he dubbed “cabinet-level portfolios” on gender and national security and tasked women to oversee them.

Now here’s the problem. Article 27(8) establishes a ceiling rule of two thirds of men and women in the composition of any state or public body. The courts have declared the firm to be a body for the purposes of Article 27(8) gender capping. Ruto and Vice President Rigathi Gachagua are men. GA candidate Justin Muturi is also a man. Moreover, of the 22 candidates for the post of cabinet secretary, 15 are men. Thus, of the 25 cabinet positions, 18 are reserved for men and 7 for women. In the Marilyn Kamuru v Attorney General case decided by Judge Onguto in 2015, the judge said the mathematics of s. including the president, the vice-president and the AG. . For Ruto’s cabinet, the 7 women would then be the numerator versus a denominator of the total and maximum of 25 cabinet positions. This translates to 72% men in the cabinet when the constitutional ceiling should, at a minimum, limit them to 66% at most.

Now let’s get to the subterfuge.

I know some will wonder about the two ministerial portfolios and the cabinet secretary, all of whom are women. Again, the overall answer is found in sections 152(a) and 154 of the constitution. Article 152 caps the number at 25. In this cap, it does not say that the cabinet secretary is a member of the cabinet. Section 154 tells us who is a cabinet secretary. It is an office in the civil service but, unlike Section 152 which explicitly says that the AG is a member of cabinet, Section 154 does not make a cabinet secretary a member of cabinet.

And this is where Ruto commits constitutional subterfuge. By explicitly naming the four positions – the two advisers, cabinet secretary and AG – as cabinet-level portfolios, he was constitutionally mixing apples, oranges and tomatoes. But it seems the intention was to dangle a red herring both in terms of the two-thirds calculations and the legality of the two offices. In fact, its proponents mistakenly insist that in calculating the two-thirds rule, all three portfolios – i.e. the two cabinet-level advisers and the cabinet secretary – must be taken into account. account.

This is how smart people try to circumvent the constitution. But the constitution is well aware that officials will try such tricks, so it says – and the court upheld – its violation can be direct or by effect. Both levels of violations are present here.

Regional and ethnic balance

It’s simple yet controversial. Article 130(2) stipulates that the composition of the national executive should reflect the regional and ethnic diversity of the people of Kenya. Again, this is little more than a bean counting exercise.

The two critical operational elements are ethnic and regional. Regional is obviously geographic although the constitution does not delineate what a region is. He leaves that to common sense, practice, rhetoric and legitimate expectations. In this regard, and in our political rhetoric, there is an area called Mt Kenya. Although defined to some extent by the proximity of the mountain (Mount Kenya), it also imports into its defining characteristic an ethnic component. So while Isiolo may be closer to Mount Kenya than Kiambu, the majority of communities residing in Isiolo are not rightfully and in terms of political rhetoric considered part of Mount Kenya. On the other hand, the Kiambu are, even though they are much further from Mount Kenya than Isiolo. But this is where it gets even more complicated: I believe that if you are a member of the GEMA community living in Isiolo, you are considered Mount Kenya. The opposite is not true. You might want to argue about this, but it’s one of those facts that makes political sense but hardly makes logical sense; nevertheless, the constitution would recognize the argument in the context of section 130(2).

Article 130(2) stipulates that the composition of the national executive should reflect the regional and ethnic diversity of the people of Kenya.

In this sense, it is possible that some of the members of the GEMA group who have been appointed to the cabinet may identify themselves as being from the Rift Valley or elsewhere in the country. But when Section 130(2) is read purposively, a question arises whether the number of people included in the cabinet who are from the Mount Kenya region or belong to one of the predominant ethnic groups in the Mount Kenya region (when considering the demographics and diversity of the country), disproportionately constitute the cabinet. My answer is yes.

Illegal ministerial portfolios

It’s not the Attorney General or the Cabinet Secretary. As I explained above, the constitution explicitly says that the AG is a member of the cabinet. Section 154 also creates the position of cabinet secretary, although it does not make the incumbent a member of the cabinet. Whether the cabinet secretary position is a cabinet-level portfolio is a discussion for another day. What interests me here is the legality of the other two cabinet-level portfolios that Ruto created on gender and national security.

The constitution and law are explicit on how the state office(s) should be created. The constitution is also implicitly awash in the logic of circumscribing strict criteria and processes for the creation of such offices, in particular to curb the waste of public funds by creating unnecessary or duplicative offices.

The agency empowered to create a public office is the Public Service Commission (PSC). Certainly, the President can ask the PSC to create a position in the public service, but when he does so, the PSC is required to carry out a thorough needs assessment to determine if the position is necessary. The constitution says so and the courts have said so. If, in fact, both positions are public service positions, the strict requirements of section 234 have not been met.

The constitution and law are explicit on how the state office(s) should be created.

There are only two other ways Ruto could have created the two offices. The first is under section 234(4) which allows the CPS to create a ‘staff staff’ position to the president. We’ll get this straightened out quickly because it would be an oxymoron to claim that a “cabinet-level portfolio” is a “personal staff” position for the president. Anyway, did the PSC sanction her?

The second way is found in Article 260, which provides that parliament can create a state office, but even then only by statute. Question: under what law are the two offices created?

Dignity

Building a cabinet is perhaps one of the most intense activities of a board of directors. It is, for example, difficult to find the logic why, for example, Ababu Namwamba was assigned to the role of sports and youth while Alfred Mutua was assigned to foreign affairs. However, sometimes the constitution is able to find some logic in some of these overnight deals and I think in that case it would easily discover the logic that explains why the two interim and illegal positions of the cabinet level portfolios ended up with women as candidates. .

Article 28 concerns human dignity. If there are two positions to be awarded, one that is constitutionally recognized and secure and the other constitutionally suspect and provisional, it is no secret that being appointed to a constitutionally secure position is more dignified. Historically, and as Ruto has demonstrated with his slate of cabinet candidates, women are always an afterthought when awarding consequential leadership positions. It’s not a guess. Instead, it’s a compelling argument under section 259 of our constitution, a provision that requires the constitution to be interpreted purposively. It is a position also supported by many other relevant and endless strengthening provisions of the constitution. Thus, the two most hesitant positions are finally attributed to women, because, after all, in the context of animal husbandry (but not under the 2010 constitution), all animals are equal but some are more equal than others .

As outlandish as the positions may seem, in contextual terms they raise a question under Article 28. A question of human dignity.

What to do?

There are two ways of dealing with these constitutional infirmities. First: Ruto can withdraw his list and modify it accordingly to comply with the constitution. If he’s too wedded to this weird concept of ‘cabinet-level portfolios’, he should at least push some of the Mount Kenya men there and move the women to the real cabinet portfolios. We can then deal with the illegalities of where the men later end up. But all of this can be wishful thinking.

Historically, and as Ruto has demonstrated with his slate of cabinet candidates, women are always an afterthought when awarding consequential leadership positions.

Second: In the Marilyn Muthoni case, Judge Onguto reprimanded the National Assembly for aiding and abetting Uhuru (with glee, may I add) to violate the constitution by failing to proceed, when selecting candidates for office as cabinet secretary, to “scrutiny” (in the judge’s words) on the constitutional compliance of the composition of the cabinet for gender, regional and other factors – but primarily gender because the crux of the matter was violation of the two-thirds rule.

Moses Wetangula and the National Assembly will soon have a choice to make: their primary allegiance and loyalty is to William Ruto or to the constitution.

About Alexander Estrada

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