There have been a lot of criticisms of CSs being heavily involved in what we can only call “campaigning”.

There have been a lot of criticisms of Cabinet Secretaries (CSs) being heavily involved in what we can only call “campaigning”. It is clear that much confusion exists, in the media and elsewhere, over the roles of CSs and members of the “public service”.

History

As the territory controlled by rulers (often kings or emperors) expanded they found that they needed more than the royal household to help them govern. And it went beyond military to fight off other countries, and control restless citizens internally.

Two other broad categories emerged. Some advised on issues of policy. But others were needed for more mundane tasks, including tax collectors – remember the original Zakayo was a tax collector for the Roman empire. In fact the Romans and the Chinese were among the first to set up systems that we would call a “civil service” – because of the extent of their realms.

The Chinese included examinations for recruitment (nearly 1500 years ago).

These two broad categories will be found in any country today, though the details vary. Here there is some fuzziness about the distinction between the political and policy oriented and the administrators (think presidential advisors and CASs), but I am not looking at this here.

The differences between the political appointees and the administrators are mainly about what they do, their qualifications, who appoints them, how long they may be in office, and who can discipline or sack them. It was not until the mid-nineteenth century that the British civil service was reformed to be more professional. When I was a student, British civil servants had little security of tenure.

We learned they held office at “the pleasure of the monarch”. Now their position is similar to other employees. Of course senior civil servants inevitably often know much more than ministers about how government actually runs. People have complained that they were often too domineering and inflexible. A famous, if dated, British television series called “Yes, Minister” brought this out very well and entertainingly; some episodes are available on YouTube.

Kenya’s 1969 Constitution made ministers sound like advisers to a King “The function of the Cabinet shall be to aid and advise the President in the government of Kenya”. The Cabinet was also “collectively responsible” to the National Assembly. This meant little except that if there was a vote of no confidence to remove the President the Cabinet would go too. It never happened. But they did appear as individuals to answer questions in Parliament about their ministries.

CSs now

A major difference between the current constitution and the pre-2010 one is that under the old one ministers had to be Members of Parliament. Now they (renamed CSs) cannot be MPs. In the constitution making debates three reasons were often given for changing the old arrangement. First that it was too easy for Presidents to buy the support of MPs by making them ministers. Secondly a concern that to combine the roles of MP and minister in one person might mean that neither job was well done.

Thirdly some people argued that separating the roles enabled the President to choose ministers from a far wider pool, and even to appoint people with special expertise in the work of their ministry. Most constitution drafts from 2002 to 2010 allowed or even required some ministers to be appointed from outside Parliament. It was not something that came up only when a sort of US style system of “Executive President” was adopted in 2010.

There was no indication in the earlier drafts, with a parliamentary system, that a minister from outside Parliament would be different in other ways from an MP/Minister. In other words they would be political appointees, of people who supported the Prime Minister. The idea of having “experts” as CSs is controversial. While it expands the pool of appointees, it is arguable (as Kennedy Buhere has argued) that it is not detailed knowledge of delivery that is needed at the top of a ministry, but an ability to make policy.

An “expert” is likely to be a specialist perhaps in some narrow aspect of the working of a ministry. Is one person likely to be an expert on Mining, Blue Economy and Maritime Affairs (to take one ministry)? They need political sense and experience. In the US also members of the Cabinet are politicians rather than subject experts.

CSs are appointed by the President – with the approval of the National Assembly.

People are sometimes confused because the constitution says “Any appointed state officer [which includes CSs] shall not hold office in a political party.” (Article 77(2)).

I suggest the idea is not to depoliticise CSs (it’s different for other state officers like judges). It is to prevent them having competing activities and also extra earnings. It goes along with banning other “gainful employment” for full time state officers, and more than two paid public roles in addition to a state pension.

In other words, apart from the fact they are not MPs, CSs are like old-type ministers. They are not political neutrals. It is not unconstitutional for them to address rallies and support the President. CSs are accountable to the President (Article 153(2). They are appointed and can be sacked by the President. They are also accountable to Parliament because they must appear before a parliamentary committee if asked (Article 153(3)), report to Parliament (153(4)(b), and the National Assembly can require the President to sack them (Article 152).

In my view, not only national CSs but also members of county executive committees can be sacked at any time by the governor. They should not be treated like ordinary employees. However, taking cases to the Environment and Labour Relations Court has led to those judges holding that CEC members are like other employees – entitled to a fair process of dismissal. Interestingly, there has been considerable discussion in South Africa about whether there should be any accountability of the President for the process of dismissal of Ministers.

I share the unhappiness about CSs spending so much time campaigning for the President. In June last year, the High Court declared that it was unconstitutional to campaign outside the official period (which will probably be declared to begin in January next year). They also ordered the Attorney General to take steps for a law governing political campaigns outside the election period. Ironically that case began in April 2022. Clearly it has had no impact so far. But this does not mean that campaigning is illegal for CSs because of their status.

Public service

The constitution talks of the “public service”. State officers are not members of the public service – that is made clear in Article 261. This means they are not affected by Chapter 13 on the public service. (There is some confusing language in the constitution, but I am convinced that what I say here is correct).

It is usually reckoned a key aspect of the public service that they are apolitical. We see this in Article 232 on values and principles of public service which is all about professionalism, impartiality and competence. Appointments to the public service are the responsibility of the Public Service Commission (PSC) – as is discipline.

Neither Parliament nor the President is involved in the appointment of members of the public service generally, and they cannot dismiss them. The courts have held that public servants can only be dismissed for good reasons and by fair processes – under the regular employment law. These statements are less appropriate where the offices of Principal Secretary and Secretary to the Cabinet (both “offices in the public service”) are concerned. But this must be for another day.

So must any discussion of the idea of changing to five-year contracts for the public service.

This article was first published by The Star Newspaper

Image: FILE