NAIROBI, Kenya, Aug 13 — The High Court has dismissed a petition challenging President William Ruto’s decision to invite advisors in Cabinet meetings, ruling that non-permanent inclusion of experts for advisory purposes does not breach the Constitution.
Justice Lawrence Mugambi found that while Article 152 of the Constitution clearly defines Cabinet membership, it does not expressly bar the President or Cabinet from occasionally inviting non-members to offer technical or policy advice on specific matters.
“A permanent inclusion allowing regular attendance of non-cabinet members into meetings of Cabinet, however, would run afoul of Article 152(1) of the Constitution as it is tantamount to an unconstitutional expansion of the Cabinet,” the judge cautioned in a decision on Wednesday.
“But occasional invitation of experts or advisors on a need basis falls within the President’s discretion.”
The case was filed by Charles Mugane, who argued that the June 27, 2023 decision allowing four advisors — including political and policy appointees — to attend Cabinet meetings was unconstitutional and violated the principles of good governance.
However, the court found that Mugane had failed to provide credible evidence of a permanent inclusion or an official Cabinet decision, relying instead on newspaper reports, which Justice Mugambi described as “secondary evidence” insufficient to prove the claims.
The judge noted that unlike in a 2020 case where the State House publicly announced the regular inclusion of a non-Cabinet member, the respondents in this matter denied the claim and no written Cabinet decision was produced as required under Article 153(1).
In dismissing the petition, Justice Mugambi stressed that courts should not “interpret a legal gap in a manner that constrains the discretion of the Cabinet or the President on internal operational matters within the Executive Branch,” provided such discretion is exercised within constitutional limits.
Justice Mugambi made no orders as to costs.
