Court strikes Nairobi Metropolitan Services chief Badi out of Cabinet
The High Court yesterday barred the Nairobi Metropolitan Services (NMS) Director General Mohammed Badi from sitting in the Cabinet.
High Court judge Antony Mrima termed President Uhuru Kenyatta’s decision to appoint Badi to the Cabinet as unconstitutional since he was not vetted and approved by Parliament.
The judge quashed Executive Order No.3 of 2020, which appointed Badi to the Cabinet, and prohibited him from attending any Cabinet meetings, Cabinet committee meetings and or discharging any duties of a Cabinet Secretary.
Powers to appoint
“A declaration is hereby issued that the decisions to appoint and include Major General Badi in the business of the Cabinet with liberty to attend Cabinet meetings and Cabinet committee meetings contravenes Article 3(2), 10(2), 129, 130 and 152(1) of the Constitution and is illegal and void,” Mrima ruled.
The judge stated that there is no provision in the Constitution that grants the President any powers to appoint any one to the Cabinet.
“This court finds that there is no justification in the decision to include Badi in the Cabinet. Badi is hence a ‘stranger’ in the Cabinet,” Mrima stated.
Kandara MP Alice Wahome, an ally of Deputy President William Ruto, had moved to court to challenge the President’s decision to have the NMS boss attend Cabinet meetings.
She had also sought orders prohibiting him from attending Cabinet meetings.
Mrima, in his judgement, said there was no doubt the appointment of Badi (pictured) to the Cabinet was not approved by the National Assembly.
“It is unclear by whom and how Badi will be oversighted. His term of office in the Cabinet also remains an illusion,” said the judge.
He 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 him 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,” he said.
Mrima said the basis on which the decision to include the NMS boss in the Cabinet was not clear.
His mandate and role in the Cabinet, he said, was 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.
President’s descretion
The judge further noted that under 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 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 had 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.”
Wahome had argued that Badi’s appointment was not in line with the Constitution.
“Major General Badi has been introduced into the Cabinet without following the process outlined in the Constitution,” she said.
