CHAPTER 14 ADMINISTRATIVE BUREAUCRACY AND REGULATORY PROCESS AND JUSTICE IN AND AFRICA: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration [CPSB, County Secretary]

This Chapter may be cited as: Ben Sihanya (forthcoming 2020) “Administrative Bureaucracy and Regulatory Process and Justice in Kenya and Africa: Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration [CPSB, County Secretary],” in Ben Sihanya (2020) Constitutional Democracy, Regulatory and Administrative Law in Kenya and Africa Vol. 2: Presidency, Premier, Legislature, Judiciary, Commissions, Devolution, Bureaucracy and Administrative Justice in Kenya, Sihanya Mentoring & Innovative Lawyering, Nairobi & Siaya

14.1 Introduction to Administrative Bureaucracy, Cabinet, Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration in Kenya and Africa This Chapter conceptualizes, problematizes, analyses and contextualizes administrative bureaucracy in Kenya and Africa, with specific focus on Cabinet Secretaries, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, Head of Public Service (HOPS), Head of Civil Service (HOCS), and County Administration using and Afro-Kenyanist constitutional sociology, theory, methodology and approach. What are the debates on the Cabinet associated with the Building Bridges Initiative (BBI)?

14.2 Conceptualising, Problematizing and Contextualizing Cabinet (Secretaries) in Kenya and Africa There has been a long debate on the meaning and significance, including appointment, powers, functions, duties, assignment, promotion, re-assignment (e.g. reshuffling), number,… liberties, rights, privileges, discipline, disappointment of Ministers under the 1963, 1964, 1969, 2008, 2010 Constitutions.1 Under the 2010 Constitution, a major departure from Afro-Kenyan tradition is that they are not Members of Parliament (MP)2, hence the BBI debate that top members of the Executive should sit in Parliament, and especially the National Assembly.3

1 Cabinet under Jomo Kenyatta, Daniel Moi, , … 2 See Article 132 of the Constitution of Kenya 2010. 3 These are the members of Cabinet, Prime Minister, Deputy Prime Minister and Cabinet Members. See the BBI Report, 2019, at https://d2s5ggbxczybtf.cloudfront.net/bbireport.pdf (accessed 19/8/2020). See also Chapters 9A, 9B and 10 of CODRALKA 1 above. 1

14.2.1 Cabinet Secretaries and Cabinet Ministers in Kenya and Africa The Constitution of Kenya 2010 introduces Cabinet Secretaries to replace Ministers under Article 152. The President nominates and, with the approval of the National Assembly, appoints the Cabinet Secretaries.4

Section 16(1) of the 1969 Constitution provided that “there shall be such offices of Minister of the Government of Kenya as may be established by Parliament or, subject to any provisions made by Parliament, by the President.”

Sub-section (2) provided that the President shall, subject to the provisions of any written law, appoint the Ministers from among the members of the National Assembly.

Parliament has never legislated on the offices of Ministers of the Government of Kenya. However, a bill was debated in Parliament seeking to establish the number of Ministries and qualifications for Ministers of the Government of Kenya. It was sponsored by Mr Ekwee David Ethuro, then Member of Parliament (MP) for Turkana Central.5 President Kibaki returned the Bill arguing that the issues were covered by the Constitution of Kenya 2010. Article 152(2) provides that there should be no fewer than fourteen and no more than twenty two Cabinet Secretaries.6

Section 4(2) and (3) of the National Accord and Reconciliation Act, a transitional legislation, amended the provisions of the 1969 Constitution regarding the appointment of Ministers and Assistant Ministers of Government.7 It provided:

“(2) In the formation of the Coalition Government, the persons to be appointed as Ministers and Assistant Ministers from the political parties that are partners in the coalition other than the President’s party shall be nominated by the Leader of the Parliamentary party in the coalition and thereafter there shall be in full consultation with the President in the appointment of all Ministers. (3) The composition of the coalition Government shall at all times reflect the relative Parliamentary strengths of the respective parties and shall at all times take into account the principle of portfolio balance.”

4 In 2013, nominations and appointments, all those nominated by the President were approved by the National Assembly. “Tyranny of numbers”?.... some of the Cabinet Secretaries had clear corrupt records or tendencies. By 2015, some were named by President Kenyatta and made to “step aside” and later “cleared.” 5 He was the Member of Parliament for Turkana Central from 1998 to 2013. He is also the first Speaker of the Senate under the Constitution of Kenya 2010, March 28, 2013 to 2017. See Senate Website, at http://parliament.go.ke/index.php/the-senate/sen-david-ekwee-ethuro (accessed 19/8/2020). 6 The Jubilee Government appointed 18 Cabinet Secretaries in 2019 7 During the debate on power sharing, Party of National Unity (PNU), through Uhuru Kenyatta and co. argued that PNU and ODM should share responsibility, not power. Orange Democratic Movement (ODM), though Prof Anyang’ Nyong’o and others argued that power sharing was a basis for joint responsibility and to enable ODM to implement its commitment through its manifesto. See …. Prof Nyong’o served as Secretary General of ODM, and from 2017 he was the second Governor of Kisumu County. 2

Articles 152 and 153 Constitution of Kenya (2010) creates 14-22 offices of Cabinet Secretaries. The Constitution of Kenya also creates, under Article 155, the offices of Principal Secretaries (PSs), who shall be the effective administrators of Ministries and State Departments. Cf. Parliamentary Secretary at Independence, and Permanent Secretary over the years…

Article 152(1) states that there shall be a Cabinet consisting of the President; the Deputy President; the Attorney-General; and Cabinet Secretaries.

Section 17 of the 1969 Constitution provided that there shall be a Cabinet consisting of the President, the Vice-President and the other Ministers. Ss. (2) provided that the function of the Cabinet shall be to aid and advise the President in the government of Kenya.

How did Cabinet (Government) develop? UK, USA, developments, among others? Cabinet development in South Africa? Nigeria? Uganda? Tanzania? Ghana?

14.2.2 Responsibilities of Cabinet Secretaries in Kenya Article 153 provides that Cabinet Secretaries are accountable individually, and collectively, to the President for the exercise of their powers and the performance of their functions. They are also responsible to Parliament (Art. 153(4) (b)).8

The 1969 Constitution as amended in 2008 was to the effect that Cabinet was collectively responsible to the National Assembly for all things done by or under the authority of the President, [the Prime Minister] or the Vice-President or any other Minister in the execution of his office.9

Is it constitutional for Cabinet Secretaries to appear before the National Assembly to answer questions under the Constitution of Kenya 2010?10 This move was opposed by the then Attorney- General, Prof Githu Muigai, the Commission for the Implementation of the Constitution (CIC) and the Legal Affairs Office in the Presidency.11 The Commission for the Implementation of the

8 Cf. The then Devolution and Planning Cabinet Secretary Anne Waiguru impeachment motion, see Dennis Odunga (2014) “MP files motion to impeach Devolution Secretary Waiguru,” Daily Nation, 20/5/2014, at https://www.nation.co.ke/news/MP-files-motion-to-impeach-devolution-secretary-Waiguru/1056-2321504- ixhi0az/index.html (accessed April 13, 2020). In April 2020, the Kirinyaga County Governor, faced another impeachment motion. The court suspended the impeachment proceedings citing effects of Covid-19 crisis. See Maureen Kakah (2020) “Court halts Waiguru impeachment process over coronavirus,” Daily Nation, April 7, 2020, at https://www.nation.co.ke/news/politics/Coronavirus-halts-Waiguru-impeachment-process/1064-5516836- xhsitcz/index.html (accessed April 13, 2020), and from the BBI debate. 9 The interpolation or insertion is from the Constitution of Kenya (Amendment) Act 2008, and the National Accord and Reconciliation Act (NARA), 2008 (expired 2013). 10 Comparatively….USA, Uganda, Nigeria…In South Africa, the National Council of Provinces (NCOP) exercises oversight by requiring Cabinet ministers to attend a meeting of the NCOP or a committee under it. 11 …. 3

Constitution (CIC) argued that Cabinet Secretaries were not supposed to answer questions on the floor of the House.12

The Commission for the Implementation of the Constitution (CIC) even filed a constitutional petition at the High Court to challenge the decision by Parliament to amend its Standing Order Rules, and set up a committee on oversight which would then summon Cabinet Secretaries.13 Subsequently, the National Assembly summoned Cabinet Secretaries. Three examples are indicative.

First, the National Assembly summoned Dr Fred Matiang’I to appear before the National Assembly Committee on Administration and Security to answer to questions of disobedience to court orders and the subsequent deportation of Miguna Miguna against several court orders. Dr matiang’i lectured the Legislators and stated that the executive are busy.14 Second, the Health Committee of the National Assembly summoned the CS for Health on Managed Equipment Scheme under which the National and County Governments spent at lest Kes. 65 billion (up from KES 38 billion) on equipment without needs assessment, without public participation…. And which were largely used.15

And third, the Cabinet Secretary for Education, Prof George Magoha, was summoned to appear before the House Committee on Education after he had failed to submit a ministerial statement over the teacher’s security-related crisis in North-Eastern Kenya i.e. Mandera, Wajir and Garissa.16

The functions and powers of Cabinet Ministers are contained in the relevant statutes and the Presidential Circulars on the Organization of the Government of Kenya that vest Ministers with powers used for the day-to-day management of their ministries. While section 17(3) of the 1969 Constitution provided that the Ministers are collectively responsible to the National Assembly for the exercise of their statutory powers, Section 1.5 of the Handbook on Governing

12 Cf. National Assembly Speaker Justin Muturi’s arguments that National Assembly Standing Orders have been amended to accommodate article 153(3) of the Constitution of Kenya 2010 to allow Cabinet Secretaries (CSs) to appear before House committees. 13 Commission for the Implementation of the Constitution (CIC) vs. The National Assembly &2 Others [2013] eKLR. This case was also quoted in Petition 628, 630 of 2014 & 12 of 2015. 14 See Youtube (2018) CS Matiang’i tears into Judiciary during security committee inquiry, at https://www.youtube.com/watch?v=Q2rchM84npk (accessed 19/8/2020). 15 See Samwel oOwino (2019) “CS: Health ministry rushed buying of MES equipment,” Daily Nation, Nairobi, November 27, 2019, at https://www.nation.co.ke/kenya/news/cs-health-ministry-rushed-buying-of-mes-equipment- 227084 (accessed 19/8/2020); Rawlings Otieno (2019) “Sicily: Leased medical equipment are unused in 30 Hospitals,” Standard, Nairobi, October 24, 2019, at https://www.standardmedia.co.ke/health- science/article/2001346616/irony-of-sh63b-idle-medical-machines-in-busy-hospitals (accessed 19/8/2020). 16 David Mwere (2020) “MPs ordered to summon Magoha over teacher crisis,” Daily Nation, Nairobi, 18/2/2020, at https://www.nation.co.ke/news/education/MPs-ordered-to-summon-Magoha-over-teacher-crisis/2643604-5460440- lk9lpsz/index.html (accessed April 19, 2020). 4

Responsibility states that these powers are held in trust of the State (the “sovereign – the President”).

This is one problematic constitutional or structural practice that adopts the Chief Executive thesis discussed earlier. There is a dual accountability of Cabinet Ministers: to the President and also to Parliament.

Under the Handbook on Governing Responsibility, Ministers were charged with the responsibility that was at least four pronged.17 First, shaping future policies and laws. Second, ensuring service delivery within the Government’s policy and legislative framework. Third, ensuring that advisory committees that make decisions and determine appeals from the public are functional.18 Fourth, ensuring that State Corporations provide services in accordance with the functions of the Ministry.19

What about the functions of Ministers and Heads of the Ministries, (State) Departments, and Agencies (MDAs) under the Human Resource Management Regulations 2016? HR regulations substantially replaced the Civil Service Code of Regulations 2005(?). The Civil Service Code of Regulations provided that Ministers were the political heads of the Ministries and are responsible for the policy direction, coordination and overall supervision of the Ministries or Departments for which they were responsible. This description of duties is problematic on at least two grounds:

First, the concept of “political responsibility” is unknown in the 2010 and 1969 Constitutions, and therefore makes accountability of Ministers problematic.

Second, duties of Ministers conflicted with those of Permanent Secretaries (PSs) under section 22 of the Constitution,20 as read with the Handbook on Governing Responsibility and the Civil Service Code of Regulations, which made the Permanent Secretaries the accounting officers of their ministries. Thus there were disputes between the then Industrialization Minister Henry Kosgey and the Permanent Secretary (PS) in the Ministry of Industrialization regarding the Minister’s termination of contracts of CEOs of State Corporations….21

17 Status of the Handbook? Revised? See Human Resource Management, 2016…. 18 “Appeals” here is used in the generic, not legal, sense…. How did the law, regulations, policy and practice change on the powers and functions of CS vis-à-vis PS in the post-Waiguru era (error?) followed ex-CS Waiguru arguing that she was not the holder of the (AIE); did not play a role in procurement in the Ministry or NYS…. What of roles in appointment and disappointment of civil servants? 19 …. 20 Cf. Arts. 152 on the composition of the Cabinet and 153 on Decisions, responsibility and accountability of the Cabinet; of the 2010 Constitution.

5

There was also debate on accountability whereby the Deputy PM and\ Minister for Local Government, Mr , indicated that he had consulted with the Head of the Public Service who was now seized of the matter following a disagreement with the Deputy Prime Minister’s Principal Secretary in the cemetery land sale question.22

The US Presidential system creates Cabinet Secretaries who are effectively and overally responsible for all facets of administration of the Cabinet departments.

In 2013, the Sunday Nation conducted a survey to gauge the performance of the 18 Cabinet Secretaries appointed by Kenyatta’s Jubilee Administration. The survey was reportedly conducted among governance experts, Members of Parliament (MPs) and others. It indicated that among those considered to be top performers included the former Cabinet Secretary for Treasury Henry Rotich, and Transport Cabinet Secretary, Michael Kamau.23 However, the Sunday Nation indicated that all the 18 Jubilee-appointed Cabinet Secretaries scored below average among the survey participants. This was partly attributed to the lack of experience in public service.24

How have the Kenyatta’s Jubilee Administration Cabinet Secretaries performed? Mr Billow Kerrow once stated that “to suggest this government isn’t dysfunctional will be an understatement.”25 This statement was a reaction to the appointment in October 2018 of an already deceased Mr Robert Kochalle (RIP) to the Board of the Kenya Films Classification Board (KFCB) by the then ICT Cabinet Secretary, Joe Mucheru. He had died on May 23, 2018…

Can Cabinet Assistant Secretary (CAS) act as CS? PS? President Kenyatta asked CSs and PSs to prepare handing over notes in 2017….26 And on August 7, 2020, President Kenyatta directed all the CSs and PSs to proceed on vacation for 11 days from 17/8/2020 (to 28/8/2020). The analysts, commentaries and punditry interpreted President Kenyatta’s direction to be occasioned by the need to reorganize, reconstitute or re-assign the Cabinet (and PSs).27 While this ws unprecedented, the media cited Prof , CS Public Service….as saying the Cabinet always takes a vacation in April, August and December.28 How does this compare to the Kibak’s

22 Cite…. Redraft… 23 Walter Menya (2013) “The top performers in Jubilee Cabinet,” Daily Nation, Nairobi, November 23, 2013, at https://www.nation.co.ke/kenya/news/politics/the-top-performers-in-jubilee-cabinet--918740 (accessed 19/8/2020). 24 Walter Menya (2013) “The top performers in Jubilee Cabinet,” Daily Nation, Nairobi, 23/11/2013, at https://www.mobile.nation.co.ke/news/The-top-performers-in-Jubilee-Cabinet-/1950946-2086166-format-xhtml- mwbhwoz/index.html (accessed April 19, 2020). 25 Vincet Kejitan (2019) “Life after death? CS Mucheru on the spot for appointing dead man to board,” Standard, Nairobi, October 18, 2019, at https://www.standardmedia.co.ke/ureport/article/2001345924/life-after-death-cs- mucheru-on-the-spot-for-appointing-dead-man-to-board (accessed 19/8/2020). 26 …. 27 To cite…. 28 …. 6 and Dr Hastings Kamuzu Banda’s working without Cabinet….29 Who are to make the decision or sign documents that the law requires to be signed by CS or PS?30

14.3 Chief Administrative Secretaries in Kenya and Africa The position of Chief Administrative Secretaries (CASs) is not expressly defined in the Constitution of Kenya. It was created by President Uhuru Kenyatta in 2018 while announcing his second term Cabinet members. The Chief Administrative Secretaries (CASs), according to the President are responsible for helping theCabinet Secretaries coordinate the running of the respective affairs of the ministries.31 Many see this position to be similar to that of Assistant Minister as it used to be in the previous constitutional dispensation.32

The office is justified/created under Article 132 (4) which states: “The President may: (a) perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission.”

My main argument is that CAS is unconstitutionally, textually due to lack of public participation and lack of evidence and proper recommendation by Public Service Commission. Scholars and commentators have also questioned the creation of this new office.33 The main areas of concern are threefold:34 First, whether there were identified gaps in the delivery of public service that the Public Service Commission (PSC) thought Chief Administrative Secretaries (CASs) would fill. Essentially, what would be the role of a Chief Administrative Secretaries (CAS)?

Second, whether these positions were advertised and what remuneration the position attracts. How were the nominations done? Did they conform to the constitutional values, principles and Constitution and the Public Service (Values and Principles) Act?

Third, this is clearly a duplication of functions or roles. Fourth, what are the implications on public wage bill?

29 …. 30 …. 31 Mwaniki Munuhe &Geoffrey Musoku (2017) “Uhuru creates new powerful post and rewards election losers,” Standard Digital, Nairobi, at https://www.standardmedia.co.ke/elections2017/article/2001267406/uhuru-creates- new-powerful-post-rewards-election-losers (accessed April 17, 2020). 32 …. 33 Patrick Lang’at (2018) “Katiba Institute questions the role of chief administrative secretaries,” Daily Nation, Nauirobi, 4/2/2018, at https://www.nation.co.ke/news/Questions-on-functions-of-chief-administrative-secretary- Cabinet/1056-4291210-11advemz/index.html# (accessed 12/3/2019). 34 Patrick Lang’at (2018) “Katiba Institute questions the role of chief administrative secretaries,” Daily Nation, Nairobi, 4/2/2018, at https://www.nation.co.ke/news/Questions-on-functions-of-chief-administrative-secretary- Cabinet/1056-4291210-11advemz/index.html (accessed April 17, 2020). 7

Some Kenyans have expressed concern over the role of the Chief Administrative Secretaries by drawing a clear comparison with what the Assistant Ministers used to do under the 1969 constitutional dispensation. The National Assembly even debated on whether CAS could appear before the House Committees. This was dismissed since “they do not appear anywhere in the pecking order of public service,” as stated by Ugenya Member of Parliament, David Ochieng.35 Who did President Kenyatta appoint as CAS? What were the main considerations?36 Their qualifications?37 Their (varied) performance?38

Thus, the Building Bridges Initiative (BBI) report also proposes the abolition of the post of the Chief Administrative Secretaries (CAS).39 This simply means not writing the CAS position into a reform question or statute. There is a different argument under the Bomas Draft Constitution for a Deputy Minister, but which must be rationalized in the context of the duplication of functions and general Government efficiency, waste, corruption, and looting….40

14.4 Assistant and Deputy Ministers Assessed How did the CAS compare to the PS under the 2010 Constitution and Assistant Minister under the 1969 Constitution?

Section 19(1) of the 1969 Constitution provides that the President may appoint Assistant Ministers from among the members of the National Assembly to assist the President, Vice- President and Ministers in the performance of their duties. This office of Assistant Minister was omitted from (or abolished by?) the Constitution of Kenya 2010. This could be perhaps because their roles were debatably obsolete. Many of them complained that they had no work. In July 2007, Kalembe Ndile, the then Assistant Minister for Tourism and Wildlife, mentioned that he was treated like a shadow and learnt issues to do with his Ministry through the press.41

While the functions of the Assistant Ministers were broadly outlined in the letters of appointment from the President as a source of executive power and also as a matter of practice, the Minister in charge of a particular Ministry outlined roles in writing that were more detailed. The Handbook on Governing Responsibility in Kenya and the Civil Service Code of Regulations states that

35 Wilfred Ayaga (2019) “MPs refuse to recognise Chief Administrative Secretaries,” The Standard, Nairobi, 9/10/2019, at https://www.standardmedia.co.ke/article/2001344907/mps-refuse-to-recognise-chief-administrative- secretaries (accessed April 17, 2020). 36 Politicians who had lost (or been rigged out)? Youth(full)? 37 …. 38 …. 39 To cite 40 …. 41 BBC News, Africa (2007) “Kenyan deputy ministers 'bored',”, 2/7/2007, at http://news.bbc.co.uk/2/hi/africa/6260930.stm (Accessed April 17, 2020). 8

Assistant Ministers have the following responsibilities: National Assembly business and questions;42 Ministry public relations; party liaison and political aspects of Ministry business.

This description is problematic for at least three (3) reasons. First, political business of ministries are an uncertain and a tricky facet of administration, especially in the light of the Kenyatta’s Jubilee Administration and Grand Coalition Government where the Minister and Assistant Minister originate from (rival) political parties or factions….43 The 2013-17 Jubilee Administration was a coalition between Kenyatta’s The National Alliance (TNA) and Deputy President ’s United Republic Party (URP). The Kenyatta Jubilee Administration of post 2017 was a single party…. And from 2018, two rival factions emerged, Kenyatta’s Kieleweke (Swahili word for let it be know, clear) vis-à-vis DP Ruto’s Tanga Tanga (Swahili word for loitering)….44

Second, Ministers usually show reluctance to delegate control of sensitive Government circulars and information regarding business to Assistant Ministers (and CAS) for fear of losing the financial benefits in rent seeking….including corruption practices, procurement irregularities…..45

Third, there have been debates on Assistant Ministers under Kenyatta 1, Moi, Kibaki, and Kenyatta 2 administrations. There were also debates at Bomas and later BBI… these debates includes appointment, powers, functions, duties, assignment, reassignment (e.g. reshuffling), numbers,46 liberties, rights, privileges, disappointment of Assistant Ministers under 1963, 1969 Constitutions…47 How have Assistant Ministers and CASs, related to other technocrats or bureaucrats including Principal Secretaries (PSs)?

14.5 The Principal Secretary in the Office of the President, Secretary to the Cabinet and Head of the Public Service Assessed Article 154 of the Constitution establishes the office of the Secretary to the Cabinet which is an office in the public service. He or she is nominated, and with the approval of the National Assembly, appointed by the President. The Secretary to the Cabinet shall have charge over the Cabinet office; be responsible, subject to the directions of the Cabinet, for arranging business, and keeping the minutes, of the Cabinet; convey the decisions of the Cabinet to the appropriate persons or authorities; and other functions as directed by the Cabinet.48

42 Cf. Roles of Mirugi Kariuki; and the late Assistant Minister of Internal Security, Orwa Ojode... 43 ….. 44 ….See also Chapters 9A, 9B, 10,…. CODRALKA 1 above. 45 … 46 Cf under Kenyatta 1, Moi, Kibaki, Kenyatta 2 and during crisis…. 47 Cf. Kalembe Ndile, Koigi Wamwere. 48 The officer is no longer the “Head of Public Service” [ to work on typology in text] 9

Wass the rejection of Ambassador by Parliament informed by good faith? Did it violate Article 73(2) on objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism or improper motives? Which options were available for Uhuru Kenyatta under Article 154 of the Constitution (executive fiat), Public Appointments (Parliamentary Approval) Act?49

Section 22(2) of the 1969 Constitution provides that there shall be a Permanent Secretary in the Office of the President (OP). Constitutional practice as evidenced in the Presidential Circular on the Organization of Government, the Cabinet Office Handbook on Governing Responsibility and the Civil Service Code of Regulations, detailed to the functions of that office, e.g. Secretary to the Cabinet and Head of Public Service (Joseph Kinyua).

Under the Handbook on Governing Responsibility in Kenya, the holder of the office was responsible for about ten (10) functions:50 First, Organization and Co-ordination of Government Business. Second, Secretary to the Cabinet. Third, organization of the Cabinet Office. Fourth, communication of Executive directives. Fifth, facilitation of appointments for Ministers and Assistant Ministers, Permanent Secretaries, Judges, Ambassadors and High Commissioners, Chairpersons and Directors of Statutory Boards.51 Sixth, facilitation of establishment and abolition of Public Offices.52 Seventh, facilitation of establishment of Presidential Commissions of Enquiry and their operation.53 Eighth, declaration of public holidays. Nineth, travel clearance for senior public officers. And tenth, public service performance and accountability.

All Permanent Secretaries reported to the Head of Public Service54 and had a duty to brief him on all staffing, operational and major policy issues in their ministries. How did this compare to presidential powers to create and direct, supervise or coordinate administrative offices to enable the smooth running of Government operation. (Article 132 (4) (a). President Kenyatta separated the office of the Secretary to the Cabinet from the office of Head of Public Service and assign Mr Kinyua and Mr Francis Kimemia….55

49 Nzau Musau (2015) “Several avenues give Uhuru a way out,” Standard on Sunday, Nairobi, June 14, 2015, at 5. 50 Note the constitutionality. Most are unconstitutional. Some are. Which? 51 Cf. under 2010 Constitution 52 Cf. under Article 132(4) of the 2010 Constitution contra s. 23 1969 Constitution. Cf. Public Service Commission Act 2011 53 We have argued that presidential establishment of public office is circumscribed under the Constitution’s Art 132(4) on PSC recommendation; public participation, and establishment of CCIOs, and judicial tribunals and bodies…. See Chapters 1, 3, 4, 4A, 5, 7, 8A, 8B, 9A, 9B, 10 of CODRALKA 1. 54 Currently State Department for Public Service…..under Principal Secretary Mrs Mary Kimonye….Head of Public Service…Mr Joseph Kinyua….? 55 …. 10

The Principal Secretary (PS)56 in the Office of the President especially exercises the delegated executive powers of the President. Thus once claimed that when he was Chief Secretary, he was like an Executive Prime Minister.57 Also President Jomo Kenyatta reportedly asked his Permanent Secretary at a function, “If you are here, then who is running the Government?”58

The fact that the Principal Secretary in the Office of the President facilitates the appointment of chairpersons and directors of statutory boards, even where the statutes empower Ministers to make the appointments, points to a practice in support of the Chief Executive thesis.59 It suggests that the President can exercise statutory powers vested in Ministers. These include the 2012 appointments and dismissal of the CEOs of boards including the Kenya Bureau of Standards (KEBS)60 However, this was unconstitutional, constitutionally suspect and problematic because in most cases, the appointments are vested in the Boards of the relevant Cabinet Secretary (CS)….

Significantly, there is a movement by some politicians and political scientists and analysts towards the Non-Executive thesis. For example, when the Orange Democratic Movement (ODM) Party felt frustrated by President Mwai Kibaki’s unilateral actions in Government appointments, ODM reportedly resolved to take an inventory of all appointments pending under Ministries assigned to ODM Ministers, and sack current officials and re-appoint ODM supporters to those statutory boards.61

The functions of the Permanent Secretary in the Office of the President are those of organization, supervision and coordination of Government business within the MDAs.62 These functions, outlined in policy papers, are in conflict with the constitutional powers of the President under the 2010 Constitution. They also conflicted with the Prime Minister’s powers and functions under section 15A of the 1969 Constitution, and section 4 of the National Accord and Reconciliation Act Act (NARA) 2008, which was read as part of the former Constitution. These provided that the Prime Minister shall have authority to coordinate and supervise the execution of the functions and affairs of the Government of Kenya including those of Ministries.63

56 Currently the Principal Administrative Secretary, Office of the President…see Executive Order No 2 of 2020, the PAS is named as part odf the National Emergency Response Committee on Coronavirus. 57 Simeon Nyachae (2010) Walking Through the Corridors of Service: An Autobiography, Mvule Africa Publishers, Nairobi. 58 … 59 See Chapters 5, 7, 9A, 9B, 10 of CODRALKA 1…. 60 Jukwaa Proboards, at:http://jukwaa.proboards.com/index.cgi?board=general&action=print&thread=4513 (accessed 3/21/2012) 61 Capital News (2008) “Cabinet unveiled: 40 Ministers, 52 Assistants,” Capital FM News, Kenya, 14/4/2008, at https://www.capitalfm.co.ke/news/2008/04/cabinet-unveiledministersassistants/ (accessed April 19, 2020). 62 Private Secretary to the President…..Mr Jomo Gecaga…? 63 During the debate on suspension of Ministers William Ruto and Sam Ongeri; some Kibaki supporters made the mischievous and absurd argument that “ministries” did not include “ministers,” henceaccording to them, the PM 11

While ODM called for the transfer of the functions of the Office of the Permanent Secretary to Cabinet, to the Office of the Prime Minister (OPM), PNU insisted on retention of the executive power structure. This compromised the efficacy of the Office of the Prime Minister, with frequent turf wars in Government.

Section 107(4) (d) still recognizes the office of Chief Secretary…?

14.6 Permanent Secretaries and Principal Secretaries Assessed in Kenya and Africa The Constitution of Kenya 2010 introduces Principal Secretaries under Article 155. This is an office in the public service. Each state department is under the administration of a Principal Secretary.64 The appointment of a Principal Secretary “shall be from among persons recommended by Public Service Commission and subject to the approval of the National Assembly.”65

Section 22(1) of the 1969 Constitution created the office of Permanent Secretary (PS) to be appointed by the President. Section 22(3) provided that “every Ministry and Government department shall be under the supervision of a Permanent Secretary, but subject to the general direction(s) and control of a Minister of Government.”

Under the Handbook on Governing Responsibility and the Civil Service Code of Regulations, Permanent Secretaries had two main functions or roles: they were designated as the Accounting Officers and Authorized Officers of their ministries.66

As accounting officers, they were responsible for the financial management of the Ministry’s financial votes.67 This made them personally accountable and responsible to Parliament for the use of the funds.

On the other hand, as Authorized Officers, Principal or Permanent Secretaries manage or managed the civil service staff working under them by exercising powers delegated to them by the Public Service Commission (PSC) under Public Service Commission Act, 2014, the Service Commissions Act, Cap. 185, (repealed and replaced). The (delegated) authorized officer’s functions include management, hiring, promotion, confirmation of appointments, discipline and termination of services of public servants.

could not suspend the Ministers; and that the President “the appointing authority” could countermand the PM…. See…. 64 The hint here is that Ministries may be renamed departments, as in the US. How will this then be cascaded to lower units of the administrative bureaucracy structurally, operationally and logistically? 65 …. 66 These need to be reviewed in light of Constitution 2010. 67 They are the holders of the authority to incur expenditure (AIE). 12

In addition, the other functions or role of Principal or (Permanent) Secretaries is that of giving effect to lawful directives of Cabinet Secretaries (formerly Ministers) and keeping them informed of all important activities and events connected with the respective ministries. Permanent secretaries are also accountable to and report to the Permanent Secretary in the Office of the President, Secretary to the Cabinet and Head of Civil Service. While this reporting line has been retained under President Kenyatta 2, it is unconstitutional….

The fact that a Principal Secretary is the person accountable to Parliament over the operations of the Ministry, and yet is constitutionally expected to obey the Minister’s instructions, and is at the same time accountable to the President (or problematically, the Head of Civil Service), blurs the lines of responsibility and creates an ineffective bureaucracy….

14.7 Summary of findings, conclusions and recommendations on Cabinet Secretary, Secretary to the Cabinet, Chief Administrative Secretary, Principal Secretary, HOPS (HOCS), and County Administration in Kenya and Africa [To apply Sihanya Mentoring methodology; typology on core issues and reforms, findings and conclussions] What are the findings, conclusions, and reforms on Cabinet Structure, membership, secretary to the Cabinet, PS, CAS? The following have been debated on Prime Minister.

The Building Bridges Initiative (BBI) Report and validation process proposed having a Cabinet consisting of Members of Parliament (MPs) and technocrats, who upon approval by Parliament become ex-officio members of Parliament. Some proposed the adoption of the Kenya Grand Coalition, a UK, or Tanzanian model of Cabinet where there is a Prime Minister who is the Leader of the political party with a majority in the House. The Prime Minister is appointed by the President subject to the approval of Parliament, and becomes the leader of government business. ODM also proposed that the Ministry of Devolution be disbanded…68

…. Let wisdom flow from the Oracle’ and back in class and through books, articles, online, in the Oracle’s Shrine and in appropriate fora…. © Prof Ben Sihanya, JSD (Stanford), Revised 27/2/2013; 26/9/2013; 14/6/2014; 14/10/14; 16/02/15; 16/06/15; 31/08/2015; 10/2/2016; 29/6/2016; 14/4/17; 10/4/2018; 11/1/19; 12/3/2019; 18/12/19; 27/4/; 19/8/2020 email: [email protected]; [email protected] (use both) url: www.innovativelawyering.com

68 Patrick Lang’at& Steve Otieno (2020) “ODM proposes weaker premier, with ministers appointed from parliament,” Daily Nation, Nairobi, 27/2/2020, at https://www.natiion.co.ke/news/politics/ODM-wants-weaker-PM- with-ministers-appointed-from-Parliament/1064-5470368-130pp3d/index.html (accessed April 19, 2020). 13