Lawmakers now poke holes into CASs mandate

Tuesday, August 6th, 2019 00:00 |
National Assembly in session. Photo/SAMUEL KARIUKI

Hillary Mageka and Antony Mwangi

A dispute over Chief Administrative Secretaries (CASs) roles has once again emerged with Members of Parliament questioning their legitimacy to respond to their questions.

Last year when activist Okiya Omtatah moved to court challenging the legality of the positions, Justice Chacha Mwita ruled that President Uhuru Kenyatta had exercised his Executive authority and could not be sued for appointing CASs and that the President enjoys immunity. 

Omtatah had moved to court to argue that the creation of CAS was invalid, null and void and had no legal effect. 

Mwita had then pledged to give his reasons for his decision for striking out the President’s name from the suit at a later date, which he is yet to.  

The issue came up last Thursday in Parliament with some MPs raising concerns, pointing out that some CASs have inadequacies in exercising executive authority while responding to matters affecting their respective departments and ministries.

In the recent past, CASs have appeared before relevant House committees to respond to matters touching on their ministries on behalf of the Cabinet secretaries.

Anchored in law

And now the lawmakers, led by West Mugirango MP Vincent Kemosi, want the CASs blocked from appearing before parliamentary committees on account that their mandate is not anchored in law.

“I have witnessed a trend where in most committees, particularly those I have sat, the Chief Administrative Secretaries appearing to respond to questions directed to Cabinet secretaries. I seek directions from you, Mr Speaker, on whether CASs are legally allowed to respond to MPs’ questions,” Kemosi asked from the floor of the House.

While naming his Cabinet after assuming office for his second term, Uhuru created the position of the CAS largely from election losers allied to his Jubilee party and some Opposition stalwarts who had worked closely with him during he campaigns.

But MPs are now demanding explanation  from the Executive, seeking explanation for the different roles and mandates of principal administrative secretaries and directors of administration in the civil service structure.

With the number of the Cabinet ministers  are limited to “not fewer than fourteen and not more than twenty-two” under Article 154 of the Constitution, sub-article 1(d), political pundits believe the President may have been compelled to create the new jobs to accommodate  more political allies.   

Politicians who were accommodated in government after losing at the ballot include Stephen ole Ntutu (Interior), Chris Obure (Transport), Rachael Shebesh (Public Service), Ababu Namwamba (Foreign Affairs), Ken Obura (East African Community), Gideon Mung’aro (Lands), Mohamed Elmi (Environment), Simon Kachapin (Energy), John Mosonik (Mining).  The President similarly appointed other personalities and technocrats, including former Inspector General of Police, Joseph Boinnet, to the CAS position. 

With an apparent lacuna in law and lack of  clear policy over the CAS positions, political analyst Javas Bigambo opines that individuals occupying the CASs positions are likely to create jostling for space and influence as they seek to have political relevance.

Power jostling

“In the Constitution, CSs are not deputised, but by the fact that CASs are sandwiched between Cabinet secretaries and Principal secretaries, there is bound to be power jostling,” says Bigambo. 

In light of the concerns raised by MPs, National Assembly Speaker Justin Muturi and Majority Leader Aden Duale have moved to address what they term “a worrying trend” of CASs appearing for Cabinet secretaries to answer questions in Parliament.

According to Muturi, Standing Orders provide that a Cabinet secretary should appear and if he or she is not able to appear for whatever reason, which must be recorded, and then he or she has to be represented by an officer not below the rank of a Principal secretary.

“It is a clever way of trying to avoid making reference to those people (CASs) whom you have just mentioned. Those are positions that could disappear overnight,” the Speaker said in response to Kemosi’s question.

“We did not want to have our Standing Orders having references to some of those strange titles. That is why we provided for an officer not below the level of a Principal secretary and it is for good reason,” he added.

The Speaker ruled, for instance, that if a Cabinet secretary is attending a Cabinet meeting or is out of the country on official duty, ideally a Principal secretary should suffice since he or she is the accounting officer.

But without making a firm ruling, Muturi advised that MPs seeking clarifications should ask respective committee chairpersons, whether or not they feel comfortable getting responses from a Principal secretary or Cabinet secretaries. 

“The CASs who have been responding to queries may well been doing so on behalf of the CSs after being assigned to do so. Nonetheless, we do not want to capture them in our Standing Orders for reasons that I have already stated,” the Speaker said.

In May, as debate raged over the Sh250,000 house allowance to MPs, Muturi made reference to generous perks earned by CASs pointing out that some of them had lost to MPs and yet are given cars, a house allowance, and are also given a mortgage.

 Duale also without appearing emphatic on whether or not CASs can represent their CSs before House committees warned committee chairpersons against a culture where they privately agree with Cabinet secretaries to skip sessions with legislators, or secretly grant CS permission not to appear before the committees. 

 “That culture must stop. I want to inform the Clerk and the committee chairpersons that, this statement that I have read is not in vain. Cabinet secretaries must appear before committees,” Duale  said, adding for example that due process requires that once a statement from the House Business Committee is read out, the Cabinet secretary must appear before the committee.

“The only time we can excuse a Cabinet secretary is if he is out of the country or if there is a Cabinet meeting—I am sure the Head of Public Service would communicate that—or if he is indisposed,” he said.

“You hear members are in committee room while the chair talked to Cabinet secretaries over the weekend through text messages or WhatsApp. That is not how we should run business,” he told heads of committees.

At least four Cabinet secretaries have been lined up to appear before the House various committees to answer to members’ queries.

Answer questions

They include Cabinet secretaries James Macharia (Transport and Infrastructure), Silicy Kariuki (Health) and Ukur Yattani (acting National Treasury and Planning) both will appear before the various departmental Committees this morning.

On Thursday, Cabinet secretary for Agriculture, Livestock, Fisheries and Irrigation Mwangi Kiunjuri is expected to appear before the Departmental Committee on Agriculture and Livestock on Thursday to answer questions.

On the same day, the Cabinet secretary for Sports, Culture and Heritage Amina Mohammed will appear before the Departmental Committee on Sports, Culture and Tourism.

According to Kiminini MP Chris Wamalwa,  the President may have brought back the position of assistant minister through the backdoor “to reward his political friends” by calling them Cabinet Administrative Secretaries.

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