A cabinet appointment deal between President William Ruto and opposition leader Raila Odinga has been thrown into uncertainty by several lawsuits challenging the eligibility of candidates and seeking to form an opposition government.
There are two cases in the Malindi High Court and one in the Milimani High Court challenging the eligibility of candidates to be CS, and Parliament does not have the final say.
The court will decide whether former Cabinet secretaries and other opposition lawmakers who have been appointed to the Cabinet should join the government.
The first legal battle is whether Professor Kitule Kindiki, Adan Duale, Kipchumba Murkomen, Alice Wahome, Salim Mvulia, Rebecca Miano, Dr Alfred Mutua, David Chirchir, Justin Muturi and Soipan Tuya should be reappointed despite the President having dismissed them from his first cabinet.
The lawsuit was filed by lawyer Saitabao Ole Kancholy, who argued that the dismissals meant the ministers could not hold public office.
He accused President Ruto of violating the constitution by nominating some of the sacked ministers for reappointment to cabinet.
“The above action by the first defendant in nominating the fifth to fourteenth stakeholders for reappointment as ministers despite earlier giving valid and obvious reasons for their removal constitutes a gross abuse of the public trust reposed in him as President and shows utter contempt and malice towards the people of Kenya,” Kancholi argued.
The lawyers argued that the sacking of the first cabinet was due to public demand following an assessment that they had not done a good job, and cited corruption as one of the reasons Kenyans took to the streets to demand the dismissal of some cabinet members.
Another issue is whether the president can appoint members of parliament to his cabinet. Kancholi said the decision to accept opposition MPs James Opiyo Wandai (energy and finance minister nominee) and John Mbadi (finance minister nominee) into the government goes against multiparty democracy and creates an ineffective oversight mechanism.
He argued that the deal between Mr Ruto and Mr Raila effectively created a one-party state.
Kancholy has filed suit against Ruto, Speaker of Parliament Moses Wetangula and the Attorney-General.
At the same time, he also filed lawsuits against former governors Hassan Joho and Wycliffe Oparanyah, who were appointed to Mr Ruto’s “expanded cabinet”.
Kancholi asserted that the Opposition cannot come to power.
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“The attack and attempt by the first defendant to eviscerate our multiparty democracy and its inherent principles of good governance, integrity, transparency and accountability is an abdication of the duty to respect, uphold and protect the Constitution as enshrined in Article 131(2) read with Articles 2, 3, 4(2) and 10(2)(a) and (c) of the Constitution,” he argued.
The other lawsuit was filed by activist and human rights group Kenya Tuitakayo. Led by Cyprien Nyamwamu, the group is seeking a declaration of expulsion for the sacked but appointed state assembly members, as well as the return of the president and vice-president Ligaty Gachagua.
Human rights activists argued that the candidates cannot return because the cabinet has not been dissolved.
In the amended lawsuit, the group also specifically accused Kindiki of police brutality during the protests.
They are seeking a ruling that holds the law professor responsible for police violations.
The 14 petitioners also want President Ruto to be held accountable for those whose lives were lost and those injured during the elections.
Like Kindiki, he did not call for police accountability, they said.
“At a time when public protests for good governance and accountability were ongoing, he encouraged, aided and abetted gross human rights violations by security agencies on the record of former Cabinet Secretaries Kitule Kindiki and Adan Duale,” the court documents read in part.
The group also challenged the cabinet nominations of Messrs. Wandai and Mbadi, saying the by-elections would be an unnecessary burden on Kenyans.
They argued that Kenyans must go to elections again after Kindiki, Murkomen, Duale and Wahome were appointed CS.
“The petition accuses the first defendant of violating Article 201 of the Constitution on the prudent use of public resources by nominating and appointing Members of Parliament Kitule Kindiki, Aden Duale, Alice Wahome and Kipchumba Murkomen as Cabinet Secretaries, triggering by-elections in their respective counties and imposing a significant but unjustifiable burden on taxpayers,” they alleged.