As is always the case, provisions of the constitution are subject to interpretation and thus the importance of the Supreme Court, which is ultimately charged with the responsibility to say what the law is but, if it gets it really wrong, Parliament can step in and correct or fix the errand interpretation with legislation, if the president assents, or by constitutional amendment, as the case may be. Whether or not reversing the Supreme Court is done by legislation or amendment, depends on the clause or interpretation in question (some interpretations can be fixed by Parliament with presidential assent without amending the constitution).
Nobody can tell how the Supreme Court will interpret a particular provision but the range of options is not unlimited.
A blogger posed some questions which no doubt require court interpretation and I believe the Supreme Court has been asked to rule on these questions already but, be as it may be, here is my take on how the Supreme Court should rule on these questions:
- Who are appointed state officers?
An appointed state officer is anyone who is appointed and “holds” a “State office” which is defined under Article 260 to be:
(a) President; (b) Deputy President; (c) Cabinet Secretary; (d) Member of Parliament; (e) Judges and Magistrates; (f) member of a commission to which Chapter Fifteen applies; (g) holder of an independent office to which Chapter Fifteen applies; (h) member of a county assembly, governor or deputy governor of a county, or other member of the executive committee of a county government; (i) Attorney-General; (j) Director of Public Prosecutions; (k) Secretary to the Cabinet; (l) Principal Secretary; (m) Chief of the Kenya Defence Forces; (n) commander of a service of the Kenya Defence Forces; (o) Director-General of the National Intelligence Service; (p) Inspector-General, and the Deputy Inspectors-General, of the National Police Service; or (q) an office established and designated as a State office by national legislation.
As you can see from the list above, holders of some of these offices are elected, others are appointed, therefore the latter are “appointed state officers,” the former are not.
Article 260 defines a “State officer” as one holding a State office, as defined above. The question is, is a janitor employed at a state office “holding” that office? My answer is no; someone “holding” an office must be other than rank and file employees, which I would define to be a senior officer.
- Are Ministers/Assistant Ministers appointed?
Ministers and Assistant Ministers are elected, then appointed; Secretaries are appointed.
Given being elected was essential to be appointed minister or assistant minister under the old constitution, appointment is secondary therefore ministers and assistant ministers are not appointed within the meaning of the new constitution.
The opposite will be true in the case of Secretaries, as they will exclusively be appointed.
- Do they [Ministers/Assistant Ministers] hold public office?
Yes. “Public Office” is defined under Article 260 as “an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament.
- Do the ministries belong to the people of Kenya or political parties.
Ministries belong and serve the people of Kenya, not political parties.
Any reference to minister or ministry/ministries refers also to secretary or department/s under the new constitution.
I, of course, reserve the right to overrule myself or modify my thinking.