State defends presidential appointments, cites constitutional powers, PSC regulations

In documents filed before the High Court, the AG listed as the 1st Respondent argues that the petition lacks a reasonable cause of action and is based on a “fundamental misapprehension” of the constitutional and statutory framework governing the establishment of such offices.

According to the AG, Article 132(4)(a) of the Constitution empowers the President to establish offices in the public service upon the recommendation of the Public Service Commission (PSC), without the need for parliamentary approval or public participation.

Similarly, the AG cites Regulation 27 of the Public Service Commission Regulations, 2020, which provides a clear legal framework for appointing advisors to the President, Deputy President, and Cabinet Secretaries, adding 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 obligation for public participation,” the AG submits

The Attorney General also argued that the petition offends the doctrine of separation of powers by inviting the court to interfere with administrative discretion constitutionally vested in the President and the PSC.

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 allegations raised in the petition do not implicate any function or power vested in the 3rd Respondent,” reads part of the commission’s court papers.

The SRC further argues that the petition does not seek any specific relief against it, rendering its inclusion in the case without legal basis or purpose. The commission adds that the absence of any prayer for relief against it is fatal to the petitioner’s case and confirms the lack of a cause of action.

The case has been  filed by Katiba Institute, which is challenging the legality of the appointment of new presidential advisors. The lobby group claims the appointments were made secretly and without proper legal authority.

Katiba Institute wants the High Court to nullify the appointments, arguing that the President lacks constitutional authority to unilaterally create and fill such offices without parliamentary approval or clear legal provisions.