Parastatal chiefs to lose jobs after verdict by High Court

Friday, May 28th, 2021 00:00 |
High Court three-judge Bench, from left, Chacha Mwita, Jessie Lessit and Lucy Njuguna. Photo/PD/CHARLES MATHAI

Bernice Mbugua @BerniceMuhindi

Several prominent Kenyans, including two former military bosses could lose their top positions in various State corporations and parastatals after the High Court declared their appointments unconstitutional.

They include former Kenya Defence Forces (KDF) bosses Joseph Kibwana and Julius Karangi and former Kenya Revenue Authority Director General Michael Waweru.

This is after a three-judge Bench declared 129 appointments to the State agencies unconstitutional. 

General Karangi served as the KDF chief between 2011 and 2015 when he retired while General Kibwana headed the military between 2005 and 2008.  

In 2018, President Uhuru Kenyatta appointed Karangi to chair the National Social Security Fund board. 

The President also appointed Kibwana to chair the Kenya Ports Authority board and Waweru to chair the Kenya Railways Corporation board.

Also appointed was former Kenya National Union of Teachers Secretary General Mudzo Nzili to the board of the National Hospital Insurance Fund and Elias Busienei as council member Kenya Leather Development Council.

The appointments were, however, challenged by the Katiba Institute and Africog, which argued that the law was not followed in the appointments.

Lobby groups sued the Attorney General and the Public Service Commission (PSC), arguing that there was no record that there were any advertisements in respect of vacancies to the positions, or any record to indicate the criteria applied for appointments or qualifications of the individuals selected to those positions.

No evidence

In their judgment yesterday, judges Jessie Lessit, Chacha Mwita and Lucy Njuguna agreed with the lobby groups, noting that there was neither advertisement for vacancies nor were the said people subjected to interviews before being appointed.

The judges said appointments did not comply with the principles in Articles 232 and 10 of the Constitution.

“A declaration is hereby made that the appointments to various parastatals and State Corporations by the President and the Cabinet Secretaries on June 5 and 7, 2018, which were notified through Kenya Gazette Notice Numbers 5569 to 5621 and 5622 to 5623, are unconstitutional for violating Articles 10 and 232 of the Constitution and are, therefore, invalid,” they ruled.

They added: “Without advertisement and subjecting the interested parties to interviews, it cannot be said that the requirements of competition and merit were complied with.”

The judges stated that the government did not even attempt to show that there was any semblance of some form of transparency and accountability in the appointments.

“There was also no evidence of any form of competition prior to making the appointments.

Without complying with transparency, fair competition and merit, the appointments cannot be said to have met the constitutional standard,” they said.

The government, in response, claimed that the appointments were made in conformity with the Constitution and the applicable statutes namely; fair competition and merit through deliberate and progressive reforms guided by Mwongozo Code of Governance for State Corporations, 2015.

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