The rivalry between two commissions regarding hiring in public universities and State corporations has ended in court.
In the case before High Court Judge Hedwig Ong’udi, the Public Service Commission (PSC) and Salaries and Remuneration Commission (SRC) are fighting over who has oversight on recruitment and determining the salaries of civil servants and university employees.
Former Permanent Secretary for Governance and Ethics, John Githongo, and Katiba Institute argue that an advisory by the Attorney General contradicts a court finding that the SRC and State Corporations Advisory Committee (SCAC) lack direct authority over parastatals and public universities.
Justice Ong'udi heard Mr Muturi’s advisory dated July 27, followed by a letter by SCAC on August 8, could cause confusion on who is in charge of the workforce.
"The letters issued by the respondents (AG and SCAC) shall almost certainly cause confusion, anxiety and disruption within State corporations and public universities; undermine and erode the authority and purpose of the PSC under Article 234 of the Constitution to facilitate a properly functioning public service imbued with the national values,” Mr Githongo and Katiba’s lawyers argue.
Githongo is represented by Behan and Okero Advocates while Suyinka Lempaa represents Katiba Institute.
They assert that the PSC has the power to establish and abolish offices within the public service, including those in public universities and government agencies.
Githongo and Katiba argue that the SRC can advise the PSC but cannot directly instruct public universities and parastatals. In addition, they say, SCAC’s role is limited to advice and cannot issue human resource guidelines.
They claim the AG’s advisory is flawed, and that he has "undermined the rule of law and eroded the public interest by issuing an advisory based on statutory provisions that have been declared unconstitutional or in conflict with the Constitution."
In the letters at the heart of the case, the PSC told off the AG over his advisory, insisting the government legal advisor has no say in hiring civil servants in parastatals, determining their salaries and employment terms, and abolition of corporations.
PSC chief executive Simon Kiprotich instructed vice-chancellors and parastatal heads to implement new human resource management instruments for creating or abolishing offices. He warned any action without PSC approval would be null and void, hence implying universities and parastatals can disregard the AG.
Regarding State corporations, Muturi said: "Under Article 234 of the Constitution, the PSC does not have powers to establish and abolish offices in the public service, appoint persons to hold or act in those offices, or confirm appointments and exercise disciplinary control over and remove persons holding, or acting in those offices.”
But the PSC, in a 14-page reply, accused Muturi’s office of failing to refer to two judgments - Manyara Muchui Anthony vs Communication Authority and three others, and Consumer Federation of Kenya vs National Social Security Fund Board of Trustees and two others.
Muturi, however, says the PSC can recommend to Cabinet Secretaries a review of working terms and code of conduct, but not directly influence parastatals. The AG was responding to Prime Cabinet Secretary Musalia Mudavadi, who sought clarity on PSC's constitutional powers over human resources in state corporations.
Justice Ong’udi directed Githongo and Katiba to serve the AG, SCAC, SRC and PSC. The case will be mentioned on September 12.