President William Ruto suffered a major blow after the High Court halted the implementation of his Executive proclamation establishing a multi-agency team to lead the war on corruption.

The Milimani High Court Wednesday, issued the orders following a petition by Nakuru-based surgeon Magare Gikenyi alongside activists Eliud Matindi, Philemon Nyakundi, and Dishon Keroti Mogire.

“Pending the inter partes hearing and determination of the petitioners’ application a conservatory order is hereby issued staying the operation and implementation of, or the further operation and/or further implementation of, the Presidential proclamation on the establishment of Multi-Agency Team on War Against Corruption ((MAT-WAC),” said Justice Bahati Mwamuye.

The petitioners have termed President Ruto’s move unlawful, saying it creates a parallel anti-corruption body in violation of the Constitution. 

They contend that the multi-agency team, established Monday, usurps the mandate of the Ethics and Anti-Corruption Commission (EACC), which is the sole body authorised under Article 79 of the Constitution to fight corruption.

“A look of the functions of the President as provided at Article 132(4) prima facie provided that the President does not have powers to establish any anti-corruption agency whatsoever,” states Dr Magare.

He adds that although the Constitution gives the President powers to perform any other Executive function, the same limits him to functions designated for other entities.

They argue that the task force undermines the independence of critical state institutions by involving them in an Executive-driven process without legal basis or parliamentary oversight.

Political manipulation

The petition warns that the inclusion of State agencies such as the Central Bank of Kenya (CBK), Office of the Director of Public Prosecutions (ODPP), National Intelligence Service (NIS), and Directorate of Criminal Investigations (DCI) compromises their constitutional independence and opens the door to political manipulation.

 “The powers wielded by the Head of State  are just ‘imaginary hot air mirage powers’ which do not exist in our progressive constitution,” reads the petition, asserting that the Constitution limits presidential authority in areas reserved for independent commissions.

The petitioners warn that the team could be weaponised for political ends, especially during a politically sensitive period. 

Citing Article 157(10) of the Constitution, they argue the MAT-WAC risks interfering with the independence of the office of the DPP and may be used to conduct political witch-hunt.

“The team will also interfere with the independence of the office of the Director of Public Prosecution (ODPP), giving it authority to commence criminal proceedings without control from any person.”

Additionally, the petitioners have raised the alarm over the team’s opaque funding structure

“Nobody other than the President knows what ‘other sources’ in the statement ‘the team shall be funded from the budgetary allocations of its members and other sources’ means,” the petition states.  The four also accuse the government of breaching principles of transparency and accountability under Article 10 and 232(1)(e) of the Constitution.

Shielding the presidency

They argue that the task force was not factored into the national budget and that its funding violates Article 94 and Chapter 12, which vests the power of appropriation solely in Parliament.

They also argue that picking certain public officers while excluding others is discriminatory under Article 236, and that allowing private individuals to access sensitive state information through the task force could violate the right to privacy under Article 31.

The petitioners further reference past Auditor-General reports that have flagged questionable procurement deals linked to the Presidency, such as the Sh104 billion Social Health Authority system and e-Citizen platform. 

They claim the creation of the MAT-WAC, which will be chaired by the Executive Office of the President, is a strategic maneuver to shield the presidency from scrutiny. 

“The petitioners therefore crave for a declaration that, in accordance with Article 2(4) of the Constitution, HE the President acted in contravention of the Constitution when he issued the Presidential Multi-Agency Team on War Against Corruption,” the petition states.

They say if the court does not intervene , there will be continued constitutional violations, waste of public funds, and loss of public confidence in governance.

Justice Mwamuye directed the petitioners to serve the respondents, including the Attorney-General, EACC, ODPP, CBK, NIS, DCI, the Financial Reporting Centre, the Asset Recovery Agency, the Kenya Revenue Authority, and the Public Procurement Regulatory Authority by today.

The case will be mentioned on September 9.