Azimio la Umoja presidential candidate Raila Odinga (right) confers with Prof Makau Mutua at an event in Nairobi on March 23, 2022.
Two rights advocates have petitioned the court to nullify President William Ruto’s decision to create the position of Senior Advisor of Constitutional Affairs in the Executive Office of the President and the appointment of Prof Makau Mutua to the post.
Mr Eliud Karanja Matindi and Dr Magare Gikenyi believe that the President’s decision was not in accordance with the Constitution due to financial implications on the wage bill and failure to consult Kenyans through public participation.
They argue that though the Public Service Commission (PSC) may have recommended the creation of the office, the process required to be subjected to public participation, and the hiring ought to have been competitive.
According to them, the President does not have unchecked powers to recruit a person to the office, so it has been established that the function 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.
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,” says the activists alleging abuse of office on the part of the President.
They are aggrieved that it was not disclosed to Kenyans how it was determined that Prof Mutua was the most suitable person to be appointed to the office.
The appointment was announced by the President on the X (formerly Twitter) platform on April 30, 2025. Prof Mutua, a close ally of former Prime Minister Raila Odinga, also confirmed the appointment on the same day on the same platform.
He served as Mr Odinga’s presidential campaign secretariat spokesperson ahead of the 2022 polls.
“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,” argues the activists.
They want the court to determine the veracity of the President's powers to establish new offices in the Executive, and the picking of Presidential advisors.
It is their case that while Article 132(4)(a) of the Constitution empowers the President to establish an office in the public service in accordance with the recommendation of the PSC, the exercise of that power is subject to the Constitution and legislation.
They claim that PSC failed to promote constitutionalism “by allowing the President to unconstitutionally take over its functions of recruitment of persons to public office”. They believe it was wrong for the President to “unilaterally hand-pick” Prof Mutua.
“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,” states the petition.
They have listed the Attorney General, Prof Mutua, PSC, Salaries and Remuneration Commission, and the Controller of Budget as respondents, respectively, to the petition.
“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,” argues the activists.
Regarding financial implications of the new office, it is the petitioners’ case that the President backtracked on his July 2024 promise on the implementation of austerity measures, which included a 50 per cent reduction of government advisors.
If the Head of State wished to reverse his decision of July 5, 2024, and establish the new contested office, he and PSC were under a duty to put this proposal to the people by way of public participation.
“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.
Apart from quashing the President’s decision, the petitioners want the court to order Prof Mutua to reimburse all public money received as remuneration and benefits during his tenure at the new office.
They state: “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”.
According to them, since the office was not created in accordance with the Constitution and legislation, it would be unconstitutional for the Controller of Budget to approve any expenditure of public money on the remuneration and benefits of Prof Mutua in his contested function.
The petition is awaiting hearing directions before Justice Chacha Mwita at the High Court in Milimani, Nairobi.
