Article 152 of the Constitution of Kenya 2010 states that the Cabinet shall consist of; The President, Deputy President, The Attorney General and not fewer than fourteen and not more than twenty-two Cabinet Secretaries. The Article further provides that the President shall nominate and with the approval of the National Assembly shall appoint Cabinet Secretaries and that a Cabinet Secretary shall not be a member of parliament.
The Article states that each person appointed as a Cabinet Secretary assumes office by swearing faithfulness to the people and the Republic of Kenya and obedience to the Constitution before the President and in accordance with the oath in the constitution.
President Uhuru Kenyatta upon the completion of the naming of his new cabinet in late January 2018 only forwarded the names of those persons who were not members of his lat cabinet for vetting by the members of the National Assembly as published in the print media.
West Media states that all the Cabinet Secretaries named by President Uhuru Kenyatta in this new Cabinet are required to be approved by the National Assembly whether or not they served in the last Cabinet that ended with his term of office that ran from 2013 to 2017 elections and his being sworn in for his second term as the President of the Republic. It will be a gross violation of the Constitution for the retained Cabinet Secretaries from the old Cabinet not to be approved by the National Assembly. It is plain common sense. The President and the Deputy President had to be sworn in a new for the new mandate they attained by the last Presidential election. Their re-election was an approval from the electorate. The new cabinet crafted by the President must go through the constitutional dictates. The fact that a Cabinet Secretary was approved in 2013 or by the last parliament cannot give him or her a license not to be vetted. These are new appointments. There is a new National Assembly. That Cabinet Secretary vetted by the last National Assembly may have since exhibited characteristics like being corrupt or incompetent so that he or she does not deserve to be a Cabinet Secretary. President Uhuru Kenyatta’s twenty-two new cabinet secretaries once approved by the National Assembly must assume office by swearing an oath of faithfulness to the people and the Republic of Kenya and obedience to the Constitution. Anything short of the prescribed Constitutional process that must be met before Cabinet Secretaries exercise the duties of their office will be illegal.
The Honourable, the Attorney General is duty bound to correctly advise the Head of State on the formation of his Cabinet. The requirements for approval of the Cabinet secretaries by the National Assembly and the taking of the oath of office are Constitutional safeguards that are not discretionary to the President. It is when the National Executive fails to interpert and apply such straightforward provisions of the Constitution that it ends up being embarrassed by the High Court declaring that this or that action is Unconstitutional. The President in Kenya is not above the law, in fact, he swore on 28/11/2017 to uphold the Constitution. He must put in place a Cabinet that conforms to the Constitution. That is Constitutionalism and the rule of law, period.
