AG DEFENDS PRESIDENTIAL APPOINTMENTS

The Attorney General has opposed a petition challenging the appointment of presidential advisors on the ground that the appointments were made lawfully and within the constitutional powers of the president.
In submissions filed at the High Court, the AG, being the 1st Respondent, argues that the petition is without any reasonable cause of action and is founded on a "fundamental misapprehension" of the constitutional and statutory basis upon which such offices are created.

According to the AG, Article 132(4)(a) of the Constitution vests authority in the President, on the advice of the Public Service Commission (PSC), to establish offices in the public service, and not under parliamentary approval or public participation.
Similarly, the AG cites Regulation 27 of the Public Service Commission Regulations, 2020, that provides a clear legal framework for the appointment of advisors to the President, Deputy President, and Cabinet Secretaries, and that all constitutional requirements were satisfied in the process.

"The appointment of advisors is an internal administrative process within the Executive Office of the President and does not trigger the requirement for public participation," the AG contends

The Attorney General also argued that the petition is contrary to the doctrine of separation of powers when it asks the court to trespass into administrative discretion constitutionally placed in the PSC and the President.

The AG has further urged the court to dismiss the petition, terming it speculative, misconceived, and legally unsustainable.At the same time, the Salaries and Remuneration Commission (SRC) has filed its grounds of opposition, stating that the petition discloses no reasonable cause of action against it.
According to the SRC, it has at all times acted within its constitutional and statutory mandate.

The matters complained about in the petition do not include any power or function vested in the 3rd Respondent," reads the commission's court papers in part.

The SRC also argues that the petition does not seek any relief against it, and its joinder in the suit is hence not legally required and is devoid of any foundation. The commission goes on that the omission of any prayer for relief against it is a fundamental defect in the petitioner's case and proves the lack of a cause of action.

The suit is brought by Katiba Institute, which is challenging the legitimacy of appointments of new presidential advisors. The lobby argues the appointments were made secretly and without the force of law.
Katiba Institute wants the High Court to nullify the appointments on the basis that the President has no constitutional authority to unilaterally create and fill the offices without the approval of Parliament or pursuant to dictates of clear provisions of law.