Unconstitutional: Court declares Ruto’s advisors unlawful

The High Court has ruled that President William Ruto violated the Constitution by appointing 21 presidential advisors to offices created outside the government structure.

In his landmark ruling, High Court judge Bahati Mwamuye declared the creation of offices for 21 presidential unconstitutional, faulting the process used to establish the positions and appoint the office holders.

In its determination, the court found that the actions leading to the establishment of the advisory offices by the first and second respondents were unlawful, rendering the appointments of all 21 advisers null and void.

Effectively, the judge issued orders quashing the decision to create the advisory positions and to appoint individuals to occupy the offices, effectively removing the advisers from their roles.

The judgment was delivered following a petition filed by governance watchdog Katiba Institute, which argued that the advisory positions bypassed the constitutional oversight of the Public Service Commission (PSC) and the Salaries and Remuneration Commission (SRC).

The petitioners contended that the appointments led to unlawful expansion of the executive and potential waste of public funds.

After the judgement the respondents, including the Salaries and Remuneration Commission (SRC) lawyer, asked for a stay of 30 days, saying that some officers will be required to had over some reports.

“It’s just a transitional period that they do the handover and any assignments that are undertaken, the petitioners stand not to suffer and harm,” they said.

However, the petitioners objected, saying that the judgment does not prevent them from handing over and that they have been earning salaries in unconstitutional offices.

In a brief ruling, the judge declined to stay the execution of the judgement adding that the oral application for stay was declined.

Justice Mwamuye emphasised that the President cannot create or fill public offices without following constitutional procedures. “The process used to appoint these advisers failed to comply with the Constitution and relevant statutes,” the judge noted, highlighting the role of the PSC in vetting and approving public service appointments.

The court ordered the Public Service Commission to halt all payments including salaries, allowances, and other benefits to the 21 advisers with immediate effect. This injunction effectively freezes any compensation for the appointees until further notice.

In addition, the court directed the PSC to audit all offices established under the Executive Office of the President since August 2022. The audit will determine which offices were created in violation of constitutional or statutory provisions.

The PSC is also required to abolish offices found to have been unlawfully created and report the progress to the High Court within 120 days. This measure aims to ensure compliance with constitutional and public service regulations.

Several of the advisers affected by the ruling, including economist David Ndii, responded by stating they could continue offering advice informally, despite the legal setback. Critics of the appointments argue that the court’s decision reinforces checks and balances in the Kenyan executive system.

Analysts say the ruling sends a strong message about the limits of presidential power and the need to respect institutional oversight. “The Constitution provides clear procedures for creating and filling public offices, and this judgment reinforces accountability,” said a governance expert.

The Katiba Institute hailed the decision as a victory for constitutionalism, urging the government to comply fully with the court’s directives.

“These ruling safeguards public resources and reinforces the rule of law,” said Executive Director Nora Mbagathi.

The government has yet to issue an official response to the ruling. Observers say the decision could have wide-ranging implications for the structure of the Executive Office and other advisory positions created outside the formal government framework.