Blow to Ruto as High Court Declares Offices of Presidential Advisors Unconstitutional

President William Ruto has suffered a major setback after the High Court in Nairobi declared the offices of Presidential Advisors unconstitutional. 

According to a judgment delivered by Justice Bahati Mwamuye on Thursday, January 22, the court found that the President acted outside the law by unilaterally creating the advisory offices without adhering to mandatory constitutional and statutory procedures.

According to the ruling, the process bypassed the Public Service Commission (PSC), ignored the advisory role of the Salaries and Remuneration Commission (SRC), lacked public participation, and resulted in a bloated and wasteful executive structure.

In its assessment, the court held that the PSC’s role had been reduced to a mere formality rather than an independent constitutional safeguard.

"A constitutional recommendation is not a mere rubber stamp. It is a shield against caprice and the return to the former ways that bedeviled public appointments," the judge said. 

The court further faulted the lack of proper documentation and deliberation by the PSC, observing that there were no minutes of Commission meetings and reports analyzing the requests against the criteria in the PSC Act.

"Most strikingly, there is a complete absence of any documentation showing the PSC's internal deliberative process. There are no minutes of Commission meetings, no reports analyzing the requests against the criteria in Section 27 of the PSC Act or Regulation 27, no records of discussions or consideration of the financial implications or the uniqueness of the proposed advisors' skills, or an examination of whether there was indeed a gap that could not be filled using internal human resource or human resources from the wider public service," the judge added.

On public participation, the court rejected the government’s argument that the creation of the offices was an internal administrative matter. 

The court ruled that it was a high-level governance decision with major fiscal implications.

"The creation of multiple senior and publicly-funded offices within the highest office of the land is of a wholly different character. It affects the structure of the executive, has substantial recurring fiscal costs, and potentially alters the dynamics of policy formulation. It is a decision of high governance and public interest that is very much fitting for public participation," the judge further said.

Mwamuye added that the process violated national values under Article 10 and financial prudence requirements under Article 201.

"I therefore find that the establishment of the offices of Advisors to the President without any form of public participation violated Articles 10 and 201(a) of the Constitution," the ruling stated.

The court also took issue with how the appointments were made, saying they were opaque, non-competitive, and amounted to political handpicking.

"The positions were never advertised. There was no open call for applications, no shortlisting based on objective criteria, no interviews conducted by an independent panel. Specific individuals were simply named and thereafter appointed as fair accompli," the court ruled.

On the use of public funds, the court ruled that the creation of the advisory offices without a needs assessment or fiscal sustainability analysis was reckless.

"Creating an unspecified and seemingly expanding number of high-salaried advisors, without a demonstrable needs assessment from the PSC, without a fiscal sustainability analysis from the SRC, and without abolishing any existing roles to offset the new costs; cannot be described as prudent and meeting the constitutional standard for the same," the court held.

In its final orders, the High Court declared the offices unconstitutional and quashed all 21 appointments.

"A declaration be and is hereby issued that the creation of the various offices of Advisors to the President was unconstitutional. A declaration is hereby issued that the appointments of the 21 Interested Parties to the said unconstitutional offices were and are null and void ab initio pursuant to Article 2(4) of the Constitution.

"An order of certiorari be and is hereby issued quashing the decisions to create the impugned Offices of Advisors to the President and the subsequent decisions appointing the Interested Parties to those offices," the court ordered.

Reacting to the development, Katiba Institute Executive Director Nora Mbagathi applauded the courts for upholding and protecting constitutional rights.

"The loss of a transparent and merit-based governance system is a big step in the move away from genuine democracy and rule of law. We are grateful that the Kenyan courts continue to uphold and protect our Constitutional rights and safeguards," she said.

This comes months after Prof. Makau Mutua disclosed the amount he earns in his role as Senior Advisor on Constitutional Affairs in the Executive Office of the President.

Speaking in an interview on Wednesday, September 10, Mutua revealed that he earns the equivalent of a Cabinet Secretary.

"I am paid the equivalent of a Cabinet Secretary," he disclosed.

Mutua was appointed to the role on Wednesday, April 30, with President William Ruto praising his extensive background in legal and constitutional matters, and welcoming him to his team.

"I have appointed Prof Makau Mutua as the Senior Advisor of Constitutional Affairs in the Executive Office of the President. Prof Mutua brings a wealth of experience in legal, constitutional and human rights matters.

"Congratulations Prof Mutua. I welcome you to join a dynamic team of public servants in the implementation of our Bottom Up Economic Transformation Agenda," he wrote on social media platform X.