High Court rules presidential advisory offices and appointments unconstitutional

The High Court has declared that the creation of advisory offices for President William Ruto and the appointments of 21 individuals to those offices were unconstitutional.

The court ruled that they were made contrary to the provisions of the Constitution and relevant public service laws.

Consequently, the court held that these appointments are null and void ab initio, having no legal effect from the outset.

The court further quashed all decisions relating to the creation of the offices and the appointments of the individuals, thereby invalidating the actions of the first and second respondents.

In addition, a permanent injunction was issued restraining the respondents and anyone acting under their authority from recognising, facilitating, or effecting any payments or benefits to the appointees arising from these offices.

The court also directed the Public Service Commission (PSC) to conduct a comprehensive audit of all offices established within the Executive Office of the President since the promulgation of the 2010 Constitution, with particular attention to offices created after August 2022.

Based on the audit, the PSC is required to abolish any offices found to have been created unconstitutionally or unlawfully and submit a progress report to the court within 120 days.

The court explained that the impugned appointments violated several constitutional provisions and statutory requirements governing public appointments.

Justice Bahati Mwamuye found that the Executive bypassed the constitutionally mandated role of the Public Service Commission in the establishment of public offices, contrary to Article 132(4)(a) of the Constitution.

The process, he held, also failed to comply with sections 27 and 30 of the Public Service Commission Act, 2017, and Regulation 27 of the Public Service Commission Regulations, 2020, particularly the requirement that the PSC determines the appropriate number of advisers.

“The impugned conduct of creating a parallel, unregulated and perhaps even unnecessary advisory structure through an opaque, non-competitive and irregular process offends the very heart of the constitutional ethos of creating a transparent, accountable and efficient public service,” he observed.

Further, the court noted that the appointments were made without the requisite input from the Salaries and Remuneration Commission on their financial implications, in breach of constitutional principles on prudent and responsible use of public funds.

The case arose from petitions filed by Katiba Institute and lawyer Vincent Lempaa Suyianka, who argued that the absence of a clear legal framework regulating presidential advisers had created a loophole allowing unconstitutional appointments.