The Gambling Control Act defines “Cabinet Secretary” as “the Cabinet Secretary for the time being responsible for matters relating to gambling.”
No such portfolio exists in Kenya’s current Cabinet — and the Head of Public Service (HOPS) is not a Cabinet Secretary at all.
Accordingly, it is important to state that HOPS does not hold a legal standing on matters gambling. This is the most fundamental violation. The HOPS and Chief of Staff is not a Cabinet Secretary.
The Act vests regulation-making power in the Cabinet Secretary and requires the Principal Secretary “in the Ministry for the time being responsible for matters relating to gambling” to sit on the GRA Board. There is no Ministry of Gambling. The Head of Public Service heads the Executive Office of the President — a coordination function, not a line ministry. He cannot, therefore,
(a) Make regulations under Section 119
(b) Call for public participation on behalf of a Cabinet Secretary
(c) Exercise any statutory power vested in a CS
This basic legal reality makes the entire public participation exercise potentially void ab initio under Article 94(6) of the Constitution of the Republic of Kenya.
In reality, there is portfolio ambiguity as relates to the Executive Order of Government. Gambling sits at the intersection of three portfolios, each with legitimate but partial claims as follows;
(a) Sports/Culture: Gambling — particularly sports betting — is functionally a sports-adjacent activity
(b) National Treasury: The Act specifically requires the Principal Secretary responsible for the National Treasury to sit on the GRA Board — an implicit recognition that gambling is a revenue instrument. Excise duty, withholding tax on winnings and licensing fees make this a Treasury matter by nature.
(c) Interior/Security: The Act requires operators to conduct security checks, vetting and due diligence on licensees, shareholders, directors (local and foreign) and beneficial owners — functions that overlap directly with security sector mandate, AML/CFT, and national security vetting, among others.
The CS for Public Service, Human Capital Development and Special Programmes has a plausible claim over none of these functions. That portfolio manages civil service human resources — not gambling, not revenue, not security.
Needless to mention Article 94(6) requires that dDelegated legislation must be within the exact scope of the enabling power. The enabling power under Section 119 flows to a specific CS. Assigning it to the wrong CS and or to a non-CS — breaks the chain of delegation entirely.
Article 47 on Fair Administrative Action effectively decrees that public participation process conducted by a person with no legal authority to conduct it cannot produce legally valid outcomes. Any regulations gazetted after this flawed process are judicially vulnerable, null and void.
Article 10 on Public Participation while welcome – Ironically, the constitutional requirement for public participation is being invoked by a person constitutionally unqualified to invoke it. This is not a technicality — it goes to the root of legality.
Article 132(3)(b): The President must assign Cabinet Secretaries to dockets. If no CS has been assigned gambling, the fault lies with a presidential omission — not something regulators can paper over by routing through the Head of Public Service and or the inapplicable CS for Public Service, Human Capital and Special Programs.
In our view, th structural confusion is deliberate. The routing of GRA through the Executive Office of the President via the Head of Public Service appears to be a political choice — keeping the lucrative gambling sector close to State House rather than under a accountable line minister subject to parliamentary scrutiny.
This raises serious separation of powers concerns under Article 94 (legislative power) and Article 153(2)(4) (Cabinet Secretaries accountability to Parliament).
The Act requires the Cabinet Secretary to consult with the GRA Board in making regulations — a check that is rendered meaningless if the “CS” is actually the Head of Public Service who sits above, not alongside, Cabinet Secretaries in the executive hierarchy.
By copy of this letter, the Honourable Attorney General is requested to invoke provisions of Article 156(6) of the Constitution and provide an urgent and verifiable legal advisory on this vexing matter
In the absence of this requested clarity, TAKE NOTICE and that not withstanding the provisions of the Executive Order of Government in force, the call for the public participation on GRA Regulations remain illegal and with no legal limbs to stand upon for want of compliance with the Constitution.
We reserve the right to challenge the process and content of the regulations. That said, we have shared our preliminary thoughts pending a proper and legal call for public participation on the draft regulations.
