Should we pay when public officers violate the law?

A recent newspaper news item on how Kenyan taxpayers continue to lose millions of shillings annually in court awards to public officers unfairly dismissed in the counties may have escaped the attention of many.

The underwhelming news report, based on court cases involving only five counties, reveals that staff who sought the intervention of the courts following arbitrary dismissals by governors were compensated to the tune of Sh100 million! The counties cited as having been forced to foot bills arising from illegal sackings are Nyeri, Laikipia, Embu, Isiolo, and Meru.

Incidentally, the counties sampled for the report happen to be located in the Mt Kenya and upper Eastern regions. This, however, could be the tip of the iceberg if an examination of the other 42 counties was to be undertaken. The five culprits could be saints.

A closer look at the lurid determinations of the courts expose the wanting human resources management practices in the devolved units. Take the case of Mr Abdikadir Suleiman, former employee of Isiolo County. Following an alleged disagreement with the county secretary at the time, Governor Godana Doyo verbally sacked him. No warning letter. No disciplinary proceedings. No termination letter! Fired!

And for the governor’s verbal marching orders, the courts ordered Isiolo County Government to pay Mr Suleiman Sh2.3 million as compensation.

Of the five counties cited in the report, Embu County has the highest number of court cases related to staff dismissals. And it has been slapped with the highest single penalty when the court ordered it to pay former County Secretary, Margarert Lorna Kariuki, Sh12.8 million for unlawful dismissal.

Just last week, some 1,200 workers of Nandi County were given the marching orders by the County Secretary for allegedly being hired without his input.

However, there was no disciplinary process before the drastic action was taken.

Although Section 30 (a) of the County Government Act provides that the governor can sack a county executive committee member at any time, Section 40 says an executive can only be fired by the County Assembly.

In their rush to assert authority over their executive committee members, punish perceived rebels or reward loyalists, Governors and their cronies have been quick to rely on Section 30 (a) at a huge cost to the taxpayer.

Majority of those who have been fired in the counties have sought legal redress and the courts have ruled in their favour.

The question that begs is this: who should bear the burden arising from the partisan, unprofessional and reckless conduct of such State/public officers? There should be a legal mechanism to shield counties from financial losses arising from deliberate violation of the law. It is not lost to many that meritocracy has largely attracted less premium in recruiting employees in the counties, particularly those within the circle of the Governor.

Those recruited owe their positions to the county chiefs by virtue of such extraneous issues as ethnicity, nepotism, and political loyalty; thus mistakenly imagine they can do as they please.

It is noteworthy that many senior employees were forced out once the term of the defunct Transitional Authority came to an end. It would be argued that the agency did not live up to expectations of overseeing a smooth transition into the new devolved system of governance.

Our constitution devotes a whole chapter to define the values and principles of public service. These values include professionalism, efficiency, involvement of the people in the process of policy making, accountability for administrative acts and affording adequate and equal opportunity for appointments.

Similarly, the Fair Administrative Action Act of 2015 affirms, among others, that every person has the right to administrative action which is expeditious, efficient, lawful, reasonable and procedurally fair.

And every person has the right to be given written reasons for any administrative action that is taken against him.

To protect the rights and fundamental freedoms of employees, the law obligates those in authority to provide prior and adequate notice of the nature and reasons for the proposed administrative action; and an opportunity to be heard and give their side of the story.

In discharging its mandate of enforcing administrative justice in the public sector, the Commission on Administrative Justice has in the past five years resolved about 500,000 complaints on maladministration such as delay, inefficiency, abuse of power, unfair treatment, discourtesy, and ineptitude among public agencies/officers.

The interventions have saved taxpayers millions of shillings in legal fees and compensation bills arising from violation of fair administrative laws.

To enforce fairness, accountability and fidelity to the law, public officers who brazenly flout the law should be made to bear the consequences.

Mr Cheboi is a Senior Manager, Advocacy and Communications, Office of the Ombudsman