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Courts now hold the trump card on who finally gets top State job

By Kamau Muthoni | July 21st 2020 at 12:00:00 GMT +0300

New Auditor General Nancy Gathungu, who is taking over from Dr Edward Ouko. [Couresy]

Barely a decade ago, appointments to senior State and parastatal positions were largely predetermined and final.

Very few dared to oppose State appointees, least of all question their qualifications or the manner in which they were appointed. 

Similarly, those who lost out on the appointments quietly nursed their wounds, unable to raise their voices in protest.

Not any more. 

Today, even after successfully going through an interview to head any government parastatal or agency, successful candidates know that they are likely to face one last hurdle - the courts.

Court battles

Hardly do major positions in government institutions fall vacant and get occupied without a court battle. For those that get occupied, their holders do not sit easy until a judge’s pen signs their confirmation letters in a ruling declaring their appointment valid.

The replacement of former Auditor General Edward Ouko demonstrates the intrigues now facing the process of getting hired for top government jobs.

Ouko left the civil service in August 2019. Finding a suitable candidate has taken a year, courtesy of court wars.

Nancy Gathungu, who is taking over from Ouko, had initially been rejected by the Public Service Commission (PSC) that went ahead to shortlist three candidates for the position.

President Uhuru Kenyatta rejected three nominees who had been sent to him last November, leading to the PSC re-advertising the position.

The re-advertisement prompted activist Okiya Omtatah to file a case, which then took the recruitment process to a different course.

According to Omtatah, the law did not provide for repeat recruitment except where all the nominees were rejected by parliament.

He argued that the selection panel erred by failing to forward those who met the requisite qualification to parliament for either endorsement or rejection.

At least 17 candidates had been shortlisted to succeed Ouko. The interview panel chair, Sammy Onyango, said the candidates had the academic and technical qualifications, but not the unique aspects of tactfulness, diplomacy and independence that the panel was looking for.

In court, Omtatah argued that the reasons given by the interview panel were unreasonable and vague, pointing out that those who were interviewed had all the required academic and work experience.

The labour court agreed. On March 12, 2020, the court ruled that the commission had no powers to re-advertise the position.

Justice Stephen Radido ordered that PSC should instead forward its report on all candidates who had been interviewed and their scores to parliament for consideration.

Parliament settled for Gathungu, who is now auditing government account books after a one-year hiatus.

It also took the court to secure the job of University of Nairobi Vice-Chancellor Stephen Kiama, who was on the verge of being kicked out just as he was about to take over running of the institution.

Education Cabinet Secretary George Magoha had revoked Kiama’s appointment. After a fight in court, the two mended fences.

Some of those who got the job had to surmount court battles seeking to oust them.

No substantive heads

The Kenya Revenue Authority (KRA) Commissioner-General James Mburu was appointed on June 4, 2019. However, it was not until May 21, 2020, when the court threw out a case filed by Kelvin Maina seeking to block his appointment.

Maina had claimed that Mburu was not qualified for the job. However, Justice Hellen Wasilwa dismissed the case, noting that Maina had not given evidence that Mburu was less qualified than other contenders, or was unfairly appointed.

National Lands Commission officials have their fair share of worry as a case challenging their appointment, filed by Omtatah, is pending before the Court of Appeal.

Courts have also been a nightmare for new appointees by taking away the cake after it has been served. A classic example is former Othaya MP Mary Wambui.

The court nullified her appointment as chairperson of the National Employment Authority (NEA) board.

Justice Onesmus Makau ruled that Wambui was unqualified and dismissed her appointment as irregular and unconstitutional, saying she did not meet the qualifications for the position.

“Her appointment to the board does not meet the constitutional requirements; it is therefore null and void. The Gazette notice is quashed. It is unlawful. A permanent injunction is issued barring her from being appointed to the post,” ruled the judge.

The case was filed by Kenya Young Parliamentarians Association, a lobby group headed by Nairobi Senator Johnson Sakaja.

A number of government institutions have no substantive heads thanks to drawn-out court cases. Nairobi Water Company has no substantive CEO owing to a court case, a predicament shared by the Communications Authority of Kenya (CA).

In June this year, the labour court blocked the CA from recruiting a new director general to replace Fred Wangusi.

This is after the Information Communication Technology Association of Kenya (ICTAK) challenged the recruitment process, terming it illegal.

Justice Maureen Onyango suspended CA’s vacancy notice until the case filed by the lobby was heard and determined.

The CA advertised the position in the daily newspapers on June 23 and gave interested parties 14 days to apply.

However, ICTAK, through its lawyer Adrian Kamotho, argued that the advertisement was discriminatory and tainted with illegality.

Two weeks ago, Kamotho also put brakes on the recruitment of a data commissioner when he went to court arguing that the publication of the list of applicants was tainted by procedural impropriety.

On July 7, 2020, Justice Wasilwa barred PSC from carrying out the recruitment until Kamotho’s petion is settled.

Appointment annulled

Meanwhile, the Tax Appeals Tribunal is still waiting for a new chair after court barred retired Justice Erastus Githinji from assuming office in April this year.

Justice Wasilwa stopped Githinji’s swearing-in until the case filed by Chama Cha Mawakili is heard and determined.

The lobby wants the judge’s appointment annulled and a competitive recruitment process started, arguing that Githinji’s age locks him out of the position. He is 70.

In another case, Justice Byrum Ongaya ordered on July 3, 2020, that the Controller of Budget’s position be competitively filled.

The judge was determining a contest by Omtatah challenging the appointment of Margaret Nyakang’o.

Omtatah had argued that the approval of Nyakang’o by the National Assembly was shambolic and shoddy and that she did not meet the mandatory minimum qualifications set in the Constitution.

Nyakang’o had put up a spirited fight, citing her long career as an accountant and asserting that she was appointed in compliance with the Constitution.


State and parastatal appointments Role of the courts
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