From Symbolic Constitutionalism to Real Constitutionalism

In 2010, Kenyans adopted a new constitution that was meant to limit the power of the presidency and entrench the culture of constitutionalism. However, the past 13 years have shown that ‘the forces of authoritarianism appear to have regrouped and are staging a comeback’. These attempts have been met with resistance from Kenyan citizens, who have shown that they are willing to defend their constitution. One example of this resistance is the BBI case, in which the High Court struck down a constitutional amendment bill that would have given the president more power.

This week, the High Court issued another spectacular ruling in which presidential power is further curtailed. In the CAS case, the High Court ruled that the president had exceeded his authority by appointing 50 Chief Administrative Secretaries (CAS) without following the required procedures. The court’s decision is a major setback for the president, who had hoped to expand his power by creating the CAS positions. The decision also sent a message to the government that it cannot ignore the will of the people when making decisions about public policy.

The CAS decision, therefore, reminds Kenyans of the shift from symbolic constitutionalism (constitutionalism devoid of substantive values) to real constitutionalism.

The CAS Fiasco

The facts in the CAS case are relatively straightforward. In 2022, the president wrote to the Public Service Commission (PSC) requesting the creation of 23 new offices of CAS. Historical clarification is important here. The office of CAS had earlier been created during the Uhuru regime. However, this was later ruled unconstitutional in the Okiya case for failure to comply with the constitutional and statutory process. In order to comply with the Okiya decision, the PSC abolished the CAS office and subjected the president’s 2022 request to public participation. However, the public participation process was not successful, with 58.2% of respondents opposing the creation of the CAS positions. Despite this opposition, the PSC recommended that the president create the CAS positions. On February 23, 2023, the president nonetheless wrote to the PSC requesting that the number of CAS positions be increased from 23 to 50. The PSC agreed to this request and recommended 50 people for appointment by the president.

The creation of the CAS positions was challenged in court on three grounds:  firstly, the petitioners challenged both the constitutionality and process of establishing the office of the CAS. Secondly, the 27 additional CAS were not subjected to public participation.  And finally, the additional CAS positions would create an unreasonable financial burden. The court upheld the first two grounds of challenge and ruled that the creation of the CAS positions was unconstitutional, with one judge dissenting on the first ground. Both the majority and minority opinion dismissed the last ground.

Setting the scene: The reign of Neo patrimonialism and prebendalism

Before 2010, the Kenyan public service was patrimonial, meaning that it was controlled by the president and his allies. The president would create and abolish offices either to reward his loyal supporters and family members or to punish any dissent. This system led to the concentration of power in the presidency and the weakening of other institutions,  entrenching what has been called the big man syndrome in Kenya. The appointment to public service or state office was not subject to any legislative approval. Although the president had a cabinet, he also created another layer known as the kitchen cabinet which included his friends, family and a few technocrats who were unchecked. The basis for the appointment was simply ethnic or political affiliation, cronyism and friendship.

The Kenyan Constitution of 2010 introduced a number of reforms to the public service. These reforms were designed to reduce the president’s power over public appointments and to ensure that appointments are made on the basis of merit, rather than political affiliation or personal loyalty. In particular, Articles 10 and 232 of the Constitution marked an end to the ‘jobs for the boys era’.

One of these reforms was the requirement that all public appointments be made on the basis of merit and fair competition. Another reform was the creation of an independent commission, the Public Service Commission (PSC), to oversee public appointments. Finally, the Constitution of 2010 requires that the president’s appointments to certain senior positions be approved by the National Assembly. This ensures that the president’s power to appoint is checked by the other branches of government.

Kenyans, therefore, decided to reduce the powers of the president by ensuring that he/she wields less say in public appointments.

It is this reality that was at the centre of the dispute in the CAS case, the dream of Kenyans to do away with an overreaching presidency vis-à-vis the wishes of presidents seeking to expand their powers beyond the constitutional limits. Luckily, the dream of Kenyans won in the CAS decision.

‘We the people: Import of public participation

The question before the Court was whether the establishment of the CAS posts was subjected to public participation. Both the majority and the minority found that while public participation had taken place in the creation of the 23 CAS posts, the creation of the additional 27 posts was not subjected to public participation and was therefore unconstitutional. This was because public participation had been in the creation of a CAS office in each ministry,  not each state department. The Majority noted that

We say so because as a guiding principle, public participation must be real and cover all forms of governance. It is noted that the public submitted comments in the public participation exercise based on the creation of the CAS office in each ministry and not the state department (220) (See also para 36 and 37 of the Minority decision)

The decision recognises the golden thread that runs through the 2010 Constitution: the recognition of the sovereignty and will of the people. The Constitution acknowledges that the people wield power and have only delegated that power to their representatives. The inclusion of public participation as a national value is an appreciation that the Kenyan citizenry is adult enough to express how they want to be governed. The decision is another reminder that the people have moved from being passive observers to becoming an active, agenda-driving force for change and a check and balance on governance. It is a recognition that the constitution is people-centred and that the people can no longer be excluded from the table where decisions are being made.

Presidential powers to create the CAS office

The point of determination rested on the interpretation of Article 132(4) of the Constitution. The provision provides that the president can establish an office in the public service on the recommendation of the PSC. The majority found that although the provision grants the president and the PSC broad powers to create offices, they must follow the Constitution (para 241). Second, the majority evaluated the status of the CAS office and noted that it is situated between the cabinet secretary and the permanent secretary. While both the Cabinet secretary and permanent secretary are subject to approval by the national assembly, the appointment of the CASs is not subjected to approval by the national assembly (para 245). The majority held that for this position to be constitutional, there must be legislation providing for such a position and a framework for a cap on the number of CASs (para 248).

Lastly, the majority considered the history of the cabinet ministers in Kenya and noted that the clamour for the 2010 Constitution was meant to control its size (para 253). They held that the office of the CAS is akin to the position of assistant ministers that existed pre-2010, which Kenyans rejected. The Court held that Kenyans capped the Cabinet at 22 and did not intend for 50 CASs to deputize 22 ministers. It is on this basis that the Court found the position of CAS unconstitutional.  The minority, however, held that the PSC was merely complying with the process laid down in Okiya and there was no need for legislation or national assembly approval.

The majority opinion is commendable for adopting an interpretation in line with the Constitution’s leitmotifs. Interpreting a transformative constitution requires judges to go beyond its mere letters and consider its context, including the country’s history. The supreme court has called this the holistic interpretation. Therefore courts are called upon to ‘clarify draftsmanship gaps’ by going outside the dry letter of the law. By imposing a requirement for legislation to create the office of CAS and subjecting CASs to parliament approval, the Court seeks to limit executive arbitrariness and endorses the clean break from Kenyans’ past. The decision reiterates an earlier position that ‘the Constitution of this Republic is not a toothless bulldog nor is it a collection of pious platitudes. It has teeth’ and it will bite when a state organ goes beyond its mandate.

Lessons beyond the CAS

There are also a few lessons that go beyond the CAS case: First, the Kenyan constitution enshrines accountability and constitutionalism, limiting the powers of the executive. The president cannot obtain uncontrollable power but must adhere to the spirit and letter of the Constitution. Unlike traditional or medieval monarchs, whose words were law, today the constitution is the law and demands compliance from the president. The president’s power is constrained, and they must act within their constitutional duties’ outer perimeter. If they exceed this perimeter, their actions will be declared unconstitutional.

Second, articles 22 and 258 of the Constitution grant Kenyans the right to challenge the constitutionality of actions, laws, and policies before the High Court. This serves as a reminder that if the president steps outside their constitutional mandate, the Court will not hesitate to intervene.

Third, the CAS decision shows that courts and judges can arrest some ‘evil popular trends in their inception’. This highlights the importance of judicial review and the establishment of Constitutional Courts or Constitutional divisions in ordinary courts  as safeguards of democracy and human rights. Courts act as governance enclaves.

Conclusion

The High Court of Kenya yet again stood up to the expectations of Kenyans as the people’s court. It demonstrated its special place in Kenya’s constitutional architecture as the enforcer of constitutionalism and the rule of law. The decision also evidences the shift from symbolic constitutionalism to real constitutionalism; that the idea of constitutionalism is not only present in the Constitution but impacts our day-to-day lives.  With democratic backsliding and regression occurring in Africa and worldwide, the CAS decision is a powerful tool for constitutional defenders. It sends a message to those suffering from the “big man syndrome” that constitutionalism continues to thrive, with courts ensuring its fire does not go out.