Activists want Ruto’s appointment of Prof Makau Mutua declared unconstitutional

President William Ruto’s creation of a new advisory position in his office has triggered a court battle, with two rights advocates accusing him of breaching the Constitution and reneging on his government’s austerity promises by appointing Prof Makau Mutua without public participation or competitive hiring.

Eliud Karanja Matindi and Dr Magare Gikenyi have petitioned the High Court to nullify the President’s April 30, 2025, decision to establish the office of the Senior Advisor of Constitutional Affairs in the Executive Office of the President and to appoint Prof Mutua to the role.

The petitioners argue that the creation of the office and subsequent appointment were unconstitutional due to their financial implications and the alleged failure to consult Kenyans through public participation.

They contend that even if the Public Service Commission (PSC) may have recommended the creation of the office, the Constitution demands public involvement, and the hiring should have been done through a transparent, competitive process.

The appointment was first announced by President Ruto through his official X (formerly Twitter) account, and Prof Mutua confirmed the same on his own platform on the same day. Prof Mutua, a close political associate of former Prime Minister Raila Odinga, served as the spokesperson for Odinga’s 2022 presidential campaign secretariat.

According to the petition, the President does not have unfettered powers to appoint individuals to such offices, especially since the function of recruitment constitutionally belongs to the PSC.

“The President, therefore, violated the Constitution and the law when he established the office and appointed Prof Mutua to that office,” reads the petition.

“Prof Mutua has also personally violated the Constitution and the law by accepting to be appointed to an unconstitutional office and in an unconstitutional manner.”

The activists further claim that the public was never informed how Prof Mutua was determined to be the most suitable candidate for the position.

“It is not known, in the absence of fair competition and merit, how the President was able to determine that Prof Mutua was qualified to be appointed to that office. The office is not established by the Constitution or by national legislation,” the petitioners argue.

The petitioners have now asked the court to determine the legality of the President’s power to establish new offices in the Executive and to appoint individuals to such posts without involving the PSC and the public.

They refer to Article 132(4)(a) of the Constitution, which empowers the President to establish an office in the public service on the recommendation of the PSC, but argue that this authority is still subject to the Constitution and relevant laws.

They claim the PSC failed in its constitutional mandate by allowing the President to bypass proper procedures.

“The President had no constitutional powers to determine that Prof Mutua qualified for appointment to the established office. That determination could only have been undertaken by the PSC through a process of fair competition and selection of the successful candidate on merit,” reads the petition.

They have listed the Attorney General, Prof Mutua, the PSC, the Salaries and Remuneration Commission and the Controller of Budget as respondents.

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The petitioners argue that only public participation could have demonstrated that the office was necessary and not being created for political purposes.

“Only by undertaking public participation would the Respondents have been able to demonstrate that the new office was, indeed, required, and was not being established for illegitimate reasons, including as a political reward,” they claim.

They accuse the President of going against his own austerity commitments made on July 5, 2024, in which he pledged to cut the number of government advisors by 50 per cent.

“It is a matter of public record that the total public compensation bill is fiscally unsustainable. Failure by the respondents to subject the decision to establish the office and the impact of that office to public finances, including prudent and responsible use of public money and its effect on the fiscal sustainability of the total public compensation bill, renders both the process and the outcome, unconstitutional, null and void,” reads the petition.

The two activists want the High Court to quash the President’s decision and order Prof Mutua to refund any public money he may have received in remuneration and benefits while serving in the contested role.

They further argue that the exclusion of other qualified candidates from the opportunity to apply for the role violated the rights and dignity of those individuals and the public.

“The unlawful discrimination and exclusion of other suitably qualified candidates with wealth of experience in legal, constitutional and human rights matters, to apply for the job of the Senior Advisor of Constitutional Affairs in the Executive Office of the President, was a violation of the human dignity of those potential candidates and the people of Kenya generally,” they state.

They assert that since the office was not established in accordance with the Constitution and legislation, the Controller of Budget would be acting unconstitutionally by approving any expenditure towards Prof Mutua’s remuneration or benefits.

The petition is awaiting hearing directions before Justice Chacha Mwita at the High Court in Milimani, Nairobi.