Ask a lawyer:
Is it legal for a president to fire the entire cabinet?

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Introduction

The question of whether it is legal for a President to fire the entire cabinet in Kenya is a significant one, touching on various aspects of constitutional law, executive powers, and the principles of governance. This response will delve into the relevant provisions of the Constitution of Kenya, 2010, and other pertinent legal frameworks to provide a comprehensive answer.

Constitutional Provisions
- 1.1 Executive Authority
- 1.2 Appointment and Dismissal of Cabinet Secretaries
Legal Framework
- 2.1 The Public Service (Values and Principles) Act, 2015
- 2.2 The Leadership and Integrity Act, 2012
Checks and Balances
- 3.1 Role of the National Assembly
- 3.2 Judicial Review
Conclusion

1. Constitutional Provisions

1.1 Executive Authority

The Constitution of Kenya, 2010, vests executive authority in the President. Article 131 outlines the functions of the President, which include:

Article 131(1)(b): The President is the Head of State and Government.
Article 131(1)(c): The President exercises the executive authority of the Republic, with the assistance of the Deputy President and Cabinet Secretaries.

1.2 Appointment and Dismissal of Cabinet Secretaries

The appointment and dismissal of Cabinet Secretaries are governed by Article 152 of the Constitution:

Article 152(2): The President shall nominate and, with the approval of the National Assembly, appoint Cabinet Secretaries.
Article 152(5): A Cabinet Secretary may be dismissed by the President.

From these provisions, it is clear that the President has the authority to dismiss individual Cabinet Secretaries. However, the Constitution does not explicitly state whether the President can dismiss the entire Cabinet at once. The interpretation of this power would likely depend on the context and the reasons for such a decision.

2. Legal Framework

2.1 The Public Service (Values and Principles) Act, 2015

This Act provides for the values and principles of public service as outlined in Article 232 of the Constitution. It emphasizes:

Section 10: Accountability for administrative acts.
Section 11: Transparency and provision to the public of timely, accurate information.

The dismissal of the entire Cabinet would need to align with these principles, ensuring that the decision is transparent, accountable, and in the public interest.

2.2 The Leadership and Integrity Act, 2012

This Act implements Chapter Six of the Constitution on leadership and integrity. It requires state officers, including the President and Cabinet Secretaries, to uphold high standards of integrity and accountability:

Section 3: Objectives of the Act include ensuring that state officers respect the values, principles, and requirements of the Constitution.
Section 12: Responsibilities of state officers to uphold the rule of law and the Constitution.

Any decision to dismiss the entire Cabinet would need to be justified within the framework of these legal and ethical standards.

3. Checks and Balances

3.1 Role of the National Assembly

The National Assembly plays a crucial role in the appointment and oversight of Cabinet Secretaries:

Article 152(2): Requires the approval of the National Assembly for the appointment of Cabinet Secretaries.
Article 95(5)(b): The National Assembly exercises oversight over the national executive.

While the President has the power to dismiss Cabinet Secretaries, the National Assembly's role in their appointment and oversight provides a check on this power. The dismissal of the entire Cabinet would likely prompt significant parliamentary scrutiny and debate.

3.2 Judicial Review

The judiciary has the power to review executive actions to ensure they comply with the Constitution and the law:

Article 165(3)(d): The High Court has jurisdiction to hear any question regarding the interpretation of the Constitution, including the question of whether any law or executive action is inconsistent with or in contravention of the Constitution.

If the President were to dismiss the entire Cabinet, this action could be subject to judicial review to ensure it complies with constitutional and legal requirements.

Conclusion

In summary, while the President of Kenya has the authority to dismiss individual Cabinet Secretaries under Article 152(5) of the Constitution, the legality of dismissing the entire Cabinet at once is not explicitly addressed. Such a decision would need to be justified within the framework of constitutional principles, legal standards, and the values of public service. It would also be subject to checks and balances, including parliamentary oversight and potential judicial review. Therefore, while it may be legally possible, it would require careful consideration and justification to ensure compliance with the Constitution and the law.