The Court Ruling on the CASs is a win for Wanjiku

Since the new government assumed office, mwananchi has had little to celebrate, if any. The Finance Act, which was recently passed by the National Assembly in what was a stab to Wanjiku’s back, was another call to Kenyans to tighten their belts. While the Wanjiku was tightening the belt, the Executive arm of the government was seemingly loosening theirs as the President wrote to the Public Service Commission on the 23/02/2023, on the review of the number of CAS positions from 23 to 50. A letter that was responded to four days later, with a nonchalant greenlight and assurance that there were indeed sufficient funds to sustain the already back-breaking wage bill.

The ruling by the High Court at Nairobi on the CAS posts is, therefore a win, or what others would term, a temporary sigh of relief for the Kenyan Citizens. For a government that rode on promises of cushioning the citizens from the rising cost of living among other ills, the opposite has been seen months down the line. Hope has been fleeting, and the Courts, through citizens and organisations of goodwill have been the last line of defence between survival and despair.

Notably, the court in addressing a myriad of issues before it in the case, delivered a ruling that was heavily founded on the principle of public participation. The principle of Public Participation was one of the foundational principles of the Constitution of Kenya, 2010, a Constitution which has been lauded as being one of the most progressive Constitutions in the world. Public Participation has, therefore, been echoed across all consequent statutes in a bid to promote democratic governance. Whilst the Legislature has lumbered the progress in terms of enacting a Public Participation Statute, the anchorage in the Constitution (Article 10 and Article 118) has proved adequate so far and often offered the desired framework for the involvement of the people in their own governance.

However, from time to time, different institutions and arms of the government have disregarded this essential principle and therefore curtailed the entitlement of say to all citizens on decisions that affect them. Public participation is a question of where and when, and not a question of if, but still, even with the backing of Constitutional precepts, it has been viewed as an option, and a privilege to Wanjiku. Notably also, in a bid to circumvent the Constitution, tokenism has been adopted when it comes to the involvement of the public, as meaningful public participation within the standards envisioned by the Constitution is barely achieved. Institution and personnel within the government have conjured up ways of fulfilling the letter of the Constitution whilst pushing the spirit of that very Constitution to the periphery. Public Participation is hence being treated as a mere formality and theoretical ideal rather than an integral part of governance.

The Courts seeing this pattern, have tried to pronounce themselves on the matter, with Justice Odunga in the case of Robert N. Gakuru & Others V Governor, Kiambu County Government & 3 Others, stating that having a few people in a hotel in a day does not satisfy the envisions of the Constitution in the slightest and cannot suffice as meaningful public participation. It is also not a question of if Kenyans want to be involved in governance, as their intentions were made very clear in the memoranda submitted to the Committee on the Finance Bill, and also the number of Kenyans who expressed their views on the post of CAS. There were 498 views submitted, among which 3 were requests for particulars, 108 were applications for appointments, 161 were in support of establishment of the office and 226 were opposed to the establishment of the office.

It is also wise to underscore that these views and memoranda from the process of Public Participation need to bear fruits and be incorporated in the final outlook of decisions made. They should not be another attempt to circumvent the spirit of the Constitution of Kenya, 2010.

In the meantime, Wanjiku can heave a sigh of relief, Wanjiku can rest and nurse their knuckles. The battle may have been won, but the war is still on.

Posted by Loise Mwakamba on July 7, 2023

Categories:  50 CASs   public participation   promises   High Court Ruling on CASs