NMS boss Mohammed Badi should not sit in Cabinet – High Court rules
The High Court in Nairobi has declared President Uhuru Kenyatta’s decision to co-opt Nairobi Metropolitan Services (NMS) Director-General Mohammed Badi into the Cabinet is unconstitutional.
In a judgement delivered by Justice Anthony Mrima, the High Court prohibited Badi from attending any Cabinet meetings, Cabinet committee meetings and or discharging any duties of the cabinet.
"A declaration is hereby issued that the decisions to appoint and include Major General Badi into the business of the cabinet with liberty to attend cabinet meetings and Cabinet committee meeting contravenes Article 3(2), 10(2)129,130, and 152(1)of the constitution and is illegal and void," Mrima ruled.
The judge further ruled that there is no provision in the constitution that grants the President any powers to appoint anyone into the cabinet.
"This court finds that there is no justification in the decision to include Badi into the cabinet. Badi is hence a 'stranger' in the Cabinet, "Mrima stated.
The decision by Justice Mrima comes after Kandara MP Alice Wahome challenged the President's move and sought an order prohibiting the Major General from attending the Cabinet meetings.
Mrima agreed with Wahome saying there is no doubt the appointment of Badi into the Cabinet was not approved by the National Assembly.
“As such, it is unclear as to whom and how Badi will be oversighted. His term of office in the Cabinet also remains an illusion,” the Judge said.
The judge further noted that the retention of Badi in the Cabinet no doubt raises far too many unanswered questions as he finds no justification in the decision to include Badi in the Cabinet.
“For instance, one may ask why Badi and yet there are so many other Director Generals or heads of public institutions in the country,” Mrima said.
The judge further noted that Article 152 (1) gives the composition of the cabinet ring-fenced and insulated to consist of only the President, the Deputy President, the Attorney General and the Cabinet Secretaries.
"I can't imagine any manner of interpretation of the entire constitution that will infuse discretion into the composition of the cabinet on the part of the President," Mrima ruled.
“If Kenyans wanted to credit the President with the discretion to appoint any other person or persons into the Cabinet, I believe the Kenyans would have expressly stated so in the constitution,” the judge ruled.
Mrima said the basis on which the decision to include Badi into the Cabinet was made is not clear. His mandate and role in the Cabinet he said is also unknown or at least the Attorney General Kihara Kariuki and Secretary to the Cabinet chose not to disclose as much.
“It seems like the decision is masked in secrecy and therefore lacks transparency. Badi is hence a ‘stranger’ in the Cabinet," he said.
Such questions the Judge said and many others would have easily been answered had the process towards the inclusion of Badi into the Cabinet been transparent and based on clear provisions of the constitution and law.
MP Wahome argued that Badi’s appointment to the Cabinet was not in line with the Constitution.
“Major General Badi has been introduced into the Cabinet without following the process outlined in the constitution,” said Wahome.
The lawmaker says by appointing the military general, the President allowed a stranger to sit at the country’s top decision making organ.