Editor's Review

Wandayi in his presentation, argued that the position is not constitutional making reference to the High Court decision that dismissed the creation of 50 CAS positions.

Azimio la Umoja has suffered a setback in a bid to stop the Kenya Kwanza administration from appointing Chief Administrative Secretaries (CASs). 

Azimio through Leader of the Minority Party Opiyo Wandayi presented an objection to the National Assembly over the National Government Administration Laws (Amendment) Bill, 2023, which sought to anchor the position into law.

Wandayi in his presentation, argued that the position is not constitutional making reference to the High Court decision that dismissed the creation of 50 CAS positions by President William Ruto terming it unconstitutional.

However, his spirited efforts proved futile after the Speaker of the National Assembly Moses Wasika Wetang'ula ruled that the creation of the position has adhered to constitutional requirements.

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Speaker Moses Wetang'ula in parliament on Wednesday, March 20, 2024. 

Speaker Wetang'ula ruled in favor of the Bill's constitutionality citing Article 260 of the Constitution which allows for the creation of state offices through national legislation. 

While addressing the National Assembly, Wetang'ula noted, "Opiyo Wandayi singled out the proposed amendments to the provisions relating to the establishment of the Office of the Chief Administrative Secretary and that of the Head of Public Service saying if the amendments were passed in the manner contained in the Bill, it would be unconstitutional."

The Speaker underscored the Justice and Legal Affairs Committee Report on the Bill which recommended certain proposed amendments intended to address the concerns raised by Wandayi.

"I have perused the Report and I am satisfied that the Committee's proposed amendments, if passed by the House, will remedy the inadequacies, if any, contained in the Bill," he added. 

"The Bill being contested by the Leader of the Minority party in actual fact intends to fill the lacunae in law as identified by the Courts in the aforesaid cases," Wetang'ula added.

In July 2023, the High Court ruled that the creation of the CAS position was unconstitutional. This followed a petition by the Law Society of Kenya (LSK) and Katiba Institute challenging the appointment process.

In a ruling delivered by judges Kanyi Kimondo, Hedwig Ong'udi and Aleem Visram, the court said public participation in the creation of the CAS post was only conducted for 23 occupants and the creation of the additional 27 occupants did not adhere to the constitutional requirement of public participation. 

"The newly-created office and fresh complement of 50 had to comply with the constitution and the criteria set out earlier in Okiyah’s case in order to be lawfully established. They did not comply. The entire complement of 50 CASs is therefore unconstitutional,” the court ruled.

However, the Kenya Kwanza team and the Justice Affairs committee presented a new report defining the roles of CASs seeking to anchor it into law.

Wetang'ula made reference to the report to dismiss Wandayi's objection.