The Court of Appeal has suspended the implementation of a High Court judgment that declared several advisory positions in the Office of the President unconstitutional, allowing the officials to remain in office pending the hearing of an appeal.
In a ruling delivered this afternoon, the appellate court granted orders staying the execution of the High Court decision after the government filed an intended appeal challenging the judgment.
The judges held that the appeal raises arguable issues that warrant consideration and that the court had to determine whether failure to grant the stay would render the appeal nugatory if it ultimately succeeds.
The High Court had earlier ruled that the establishment of offices occupied by the 3rd to 23rd respondents, who serve as advisors to the President, was unconstitutional.
In deciding whether to suspend the judgment, the Court of Appeal examined whether the consequences of the High Court decision would be reversible if the appeal later succeeds, or whether damages would adequately compensate the affected parties.
The judges emphasized that applications for stay of execution must be determined based on the specific facts and circumstances of each case.
They further noted that the dispute raises competing public interest considerations, requiring a proportionality assessment before deciding whether to grant the orders sought.
Lawyers representing the applicant and the supporting respondents argued that failure to suspend the judgment would disrupt operations within the Office of the President and paralyse executive functions. They warned that the immediate removal of the advisors could create administrative instability and constitutional uncertainty, particularly because no formal handover processes had taken place.
However, the first respondent opposed the application, arguing that granting a stay would allow unconstitutional actions to continue despite the High Court’s findings.
The appellate judges also considered earlier decisions involving the now-defunct position of Chief Administrative Secretary (CAS), which had previously been declared unconstitutional.
In one such decision, the Court of Appeal declined to suspend a similar ruling, stating that allowing individuals to continue serving in offices created in violation of the Constitution could not be justified.
“Service rendered in violation of the Constitution is no service at all in the eyes of the law,” the court had stated in that earlier judgment.
However, the judges noted that the present case is distinguishable because the presidential advisors were already serving in their roles when the High Court delivered its judgment.
The court observed that their immediate removal could disrupt the functioning of the Office of the President.
The judges added that concerns raised about possible duplication of roles would be addressed during the full hearing of the appeal.
“In the circumstances, we are convinced that the applicant has satisfied the two limbs for the grant of the order sought,” the court ruled.
The Court of Appeal therefore ordered that the High Court judgment be stayed pending the hearing and determination of the appeal.
Due to the public interest nature of the dispute, the court recommended that the President of the Court of Appeal prioritise the hearing of the case.
Costs of the application will be determined after the appeal is concluded.
