position that if the Constitution or a statute assigns ministerial responsibility to a specific Cabinet Secretary then any reassignment of such responsibility to another Cabinet Secretary must be preceded by appropriate amendments to the Constitution or statute. 134. The position is fortified in that any amendment to the Constitution or statute must be preceded by public participation. Indeed, Courts have variously held that Parliament and County Assemblies must carry out elaborate public participation as the case may require. It also depends on the nature of the matter under consideration. 135. ….. 136. ……. 137. Therefore, if any re-assignment of ministerial responsibility provided for by the Constitution or a statute must be subjected to public participation, as the case may be, then even in instances where the Constitution or the law is silent on the assignment of ministerial responsibility, any re-assignment of such responsibility must as well be preceded by public participation. The element of public participation must, therefore, be undertaken in any decision re-assigning ministerial responsibility. I say so because re-assigning ministerial responsibility affects an earlier decision which assigned the responsibility to another Cabinet Secretary. The re-assignment cannot hence be done unilaterally. It must be preceded by public participation. 138. The decision to re-assign ministerial responsibility is one which transcends the borders of internal operational decisions in exercise of the executive authority into the arena of, and has a significant effect on the major sector players, stakeholders and/or the public. For instance, if a decision deals with reshuffling of the Cabinet, renaming of ministries and state departments, among like others, then such a decision is purely a decision on the internal operations of the executive and need not to be subjected to public participation. 161. The above decisions sufficiently settled the aspect of the threshold required to subject decisions by public entities to public engagement. Whereas not all decisions by public entities ought to be subjected to public participation, there are those decisions which transcend the Judgment – Nairobi High Court Constitutional Petitions No. E211 of 2022 & JR No. E071 OF 2022 Page 42 of 59

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