Two activists have filed a petition at the High Court contesting the recent appointment of Prof Makau Mutua as the Senior Advisor of Constitutional Affairs in the Executive Office of the President.

Eliud Karanja Matindi and Dr Magare Gikenyi argue that the position to which Prof Mutua was appointed by President William Ruto on April 30, 2025, is not established in the Constitution or any Act of Parliament.

 They have termed the move “unconstitutional, opaque, and an abuse of executive power.”

“The President does not have the constitutional authority to create and fill such an office without public participation, fair competition, or a legal framework,” the petition states.

The petitioners accuse the State House of bypassing constitutional processes and undermining the rule of law in appointing Prof Mutua.

“This appointment was made without public participation, without a transparent recruitment process, and without any legal foundation for the office itself,” they argue in their 28-page petition.

They claim the role was arbitrarily created, without justification or adherence to legally required steps for establishing a public office.

“The Executive Office of the President cannot be used as a playground for political appointments,” said Dr Gikenyi.

The petition highlights Article 132(4)(a), stating that it does not give the President unlimited power to create public offices without involving the public or ensuring merit-based selection.

“Only through fair competition and merit, carried out by the Public Service Commission, could it have been determined that the person appointed met the requirements,” the petition reads.

According to the activists, the appointment violated Articles 10, 232, and 234 of the Constitution, which require public participation in government decisions. 

They argue this is not merely procedural, but a vital constitutional safeguard against executive overreach.

They also accuse the Public Service Commission (PSC) and the Salaries and Remuneration Commission (SRC) of failing in their oversight roles by either endorsing or remaining silent on the appointment.

“The President usurped the powers of the Public Service Commission, which is constitutionally mandated to establish and fill public service offices through fair competition and merit,” said Dr. Gikenyi.

They maintain that Prof. Mutua, a respected legal scholar and former law school dean, was appointed without any public advertisement, competitive recruitment process, or vetting, elements they consider crucial for constitutional compliance.

“By accepting an appointment made outside constitutional processes, the 2nd Respondent (Prof Mutua) has demonstrated unfitness for public office,” the petitioners assert.

The lack of public participation in establishing the office is, they argue, one of the most serious omissions. 

Citing Articles 10 and 232, they insist the public should have been consulted before the office was created or any remuneration determined.

“It is not only unconstitutional to bypass the people in matters that directly impact governance and public finance, but also deeply disrespectful to the sovereignty of the people of Kenya,” said Matindi.

The lawsuit also names the PSC, SRC, and the Controller of Budget as respondents, accusing them of enabling the appointment by failing to intervene or by advising on remuneration without engaging the public.

“These institutions were expected to act as gatekeepers for constitutional governance, but instead, they stood by silently or actively facilitated an illegality,” said Matindi.

They argue the PSC was obligated under Article 234(2)(a)(ii) to ensure a fair and open recruitment process, while the SRC should have ensured public participation before offering any salary advice.

The petitioners point to what they describe as a contradiction in President Ruto’s actions. 

They reference his austerity directive from July 5, 2024, which called for a 50% reduction in government advisors due to an overstretched public wage bill. 

Yet, just months later, the President established a new advisory office, a decision the petitioners say contradicts his earlier position and demonstrates poor fiscal prioritization.

“You cannot on one hand claim the government is broke, then on the other, create high-level positions without public need or input,” the petition reads.

“The country’s public wage bill is already unsustainable. Creating new positions without clear justification or consultation exacerbates this crisis.”

They further contend that no job description or justification for the new office has been made public, leaving Kenyans unaware of the role Prof Mutua actually plays in government.

The petition also questions whether Prof Mutua meets the constitutional threshold for public office. 

“Even if he is qualified, that’s irrelevant. What matters is whether he was subjected to the process that every Kenyan must go through to get a public job,” the petition reads.

The activists allege that the appointment was politically motivated and warn that it sets a dangerous precedent for governance based on favoritism rather than merit.

They are asking the court to declare the office unconstitutional, nullify Prof Mutua’s appointment, and compel him to refund any public funds received as salary or allowances. 

They also seek a declaration that the President cannot determine an individual’s suitability for public office without due process.

Ultimately, they argue, the appointment violates the principles of transparency, accountability, and integrity enshrined in Article 73 of the Constitution.