Vipi wanaharakati wanaweza kwenda kortini kuhoji vyeo vipya vya Prof. Palamagamba John Aidan Mwaluko Kabudi (Mb) na William Vangimembe Lukuvi (Mb) ?.
HOMEKENYA COURT SAYS NO MORE 'JOBS FOR PALS', SETS ASIDE 130 APPOINTMENTS
KENYA COURT SAYS NO MORE 'JOBS FOR PALS', SETS ASIDE 130 APPOINTMENTS
JUN 03, 2021
By
This was a petition brought by two Kenyan organisations that support constitutionalism and open governance: the Katiba Institute and the Africa Centre for Open Governance (AfriCOG). They sued the attorney general and the public service commission, saying that more than 120 appointments to a variety of state corporations made by President Uhuru Kenyatta and members of his cabinet, were unconstitutional.
And as you read the judgment, you could be forgiven for thinking, at first, that the petition would fail. One leg of the argument by the institute and AfriCOG was that the appointments by the President and the cabinet were ‘appointments in the public service’. As such, only the Public Service Commission had the power to make these appointments.
By paragraph 65 (of a total of 122 paragraphs), the court had reached the conclusion that ‘positions in parastatals and state corporations are not positions in the public service’. As a result, a reader could well have thought this would be the end of the matter, particularly since the court’s next conclusion was that ‘appointments to parastatals and state corporations can only be made by the President or Cabinet Secretaries’.
Mandated
What then, was left of the petition? – Quite a lot, as it turned out. For even if the president and cabinet were mandated to make these appointments, the question still remained whether they had done so in a constitutional way, said the court.
The two applicants argued that the statutes under which the appointments had been made were unconstitutional because they did not require that the appointments should be made on the basis of fair competition and merit.
On the other hand, the AG and the others involved in the matter, argued that the constitution provided this space for the President and cabinet members to make appointments to parastatals and state corporations ‘that would enable to government to deliver on the promises it made to the public.’ This was an argument with which the court did not agree, however.
‘Run afoul’
Statutes that became law before the 2010 constitution was enacted did not directly stipulate the same requirements for appointment as post-constitutional laws, said the judges. But the court held that these older statutes ‘should be read with alterations and adaptations necessary to make [them] conform with the constitution’. Because they were to be read in this way, the court could not declare the appointments provisions in these laws, unconstitutional.
However, stressed the court, all appointments made in terms of these statutes had to comply with the requirements of the constitution that they be ‘open, transparent, competitive and merit’ based and that they should take into account ‘gender, ethnicity, diverse communities of Kenya and persons with disabilities’. If appointments were made without regard to these requirements, they would ‘run afoul’ of the constitution.
As to the post-constitutional statutes relating to parastatals, they would clearly have to comply – but in the case of the National Social Security Fund Act, for example, there was no such compliance requirement, and the court thus found the
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3 Jun 2021 — Kenya court says no more 'jobs for pals', sets aside 130 appointments. By Carmel Rickard. Kenya's President Uhuru Kenyatta has been dealt ...