The Public Service Commission (PSC) has objected to a suit by the Law Society of Kenya challenging the establishment of the Chief Administrative Secretary (CAS) positions.
LSK sued PSC and the Attorney General, claiming a lack of participation in the establishment of CAS positions, which the lawyers say would cause a financial strain to the country.
Following the petition, Employment and Labour Relations Court Judge Monica Mbaru suspended the establishment of CAS positions.
Justice Mbaru granted the order following an application by the LSK.
In a reply to the petition, PSC chief executive Simon Rotich said the petition together with the court order issued on October 12, had been overtaken by events since by the time the court was considering the application and granting the orders, it had already recommended and the President had already established the office of Chief Administrative Secretary on October 11.
Rotich termed the petition as baseless and should be dismissed.
“It is not in the public interest to issue an order barring a process that has already taken place and moved to the level of recruitment which the court has not stopped. The petitioner’s application and the petition are baseless and lacking in merit and should therefore be dismissed with costs,” he said.
He said that on September 20, the Commission received a letter dated September 19 from the Head of Public Service communicating the proposal of the president to establish the office of Chief Administrative Secretary in the public service.
The proposal, he said, was discussed on September 21 by the Commission at its regular weekly meeting, and noted that the position had been established by the Commission in January 2018.
The Commission, he said, further noted that the establishment of the office was challenged in court vide consolidated High Court Petitions Nos. 33 and 42 of 2018 and the court did not declare the office unconstitutional.
“The Commission also noted that the court did not declare the office itself unconstitutional but only found the process of establishing the office unconstitutional,” he said.
The Commission noted having considered the 2018 High Court judgment resolved to abolish the office of Chief Administrative Secretary as established on January 24, 2018, to comply with the court judgment while considering the president’s proposal to establish the office of Chief Administrative Secretary.
He added that the Commission, in compliance with the court judgment, resolved to commence the process of considering the proposal of establishing the office by first undertaking a public participation process.
An advertisement for public participation, he said, was put up in the media on September 22.
“The period of public participation ran from September 22 up to October 6, 2022 at the close of which the Commission had received a total of 498 responses,” he said.
He said that out of the 498 responses, three were requests for particulars, 108 were applications for appointment to the position of Chief Administrative Secretary, 162 were in support of the establishment of the office, and 225 were in opposition to the establishment of the office.
High wage bill
The Commission, he said, considered and analysed all the views received at its meeting held on October 11, and noted that the 225 who opposed said the office is and was declared unconstitutional by the court and that it would be a burden to the economy as it would further bloat the wage bill and the office duplicates the role of the Cabinet Secretary and the Principal Secretary.
The Commission, he said, discussed and considered all the concerns in detail and noted that the question of unconstitutionality was an issue for determination in the High Court at Nairobi in consolidated constitutional petitions Nos. 33 and 42 of 2018.
CAS position, the commission noted, existed since 2018 under President Uhuru Kenyatta administration and has since then been provided for in successive budgets including the current budget of the financial year 2022/23.