Bench declines to lift order against grilling of PS nominees

Tuesday, November 22nd, 2022 06:20 | By
Justice Nduma Mathews Nderi. PHOTO/Courtesy.

The Employment and Labour Relations Court yesterday declined to lift orders that stopped the National Assembly from vetting Principal Secretaries. Justice Nduma Nderi (right) extended the orders until next Tuesday when he will deliver a ruling on whether he has jurisdiction to hear the three petitions filed by Law Society of Kenya, activist Fredrick Bikeri and medic Magare Gikenyi.

“The orders barring the respondents from vetting the nominated Principal Secretaries are hereby extended,” ruled the judge.

The National Assembly wanted the orders set aside and the vetting to continue, arguing that it was a great prejudice to the public.

National Assembly regulations state that after 28 days from the date of nomination, if the vetting is not concluded, the nominees would be automatically confirmed or appointed.

The sentiments were echoed by the Public Service Commission, who also stated that they had filed preliminary objections to the suit on grounds that the Labour court did not have jurisdiction to deal with the matter.

But the LSK asked the court to extend the temporary orders, arguing that the 28 days claimed by the National Assembly are not cast in stone and Parliament can extend the period.

Justice Nderi declined to vacate the orders and directed the parties to file and serve their submissions by Friday this week.

The suit by LSK and Fredrick Bikeri challenges the names of 51 Principal Secretaries (PSs) nominated by President William Ruto on November 2. It says the nominations did not take into account regional and tribal balance, two-thirds gender rule, persons living with disabilities, and the youth, contrary to the principles of good governance.  In the “impugned list of principal secretaries, 13 are from the Kalenjin community  and 13 others from Central Kenya, to the detriment of the other 40 communities, contrary to pluralism of the country”, argues LSK.

 and depicts regional imbalance,” argues LSK in court documents.

The society argues that the list unless constituted according to the dictates of the constitution may lead to misuses of resources contrary to article 201(d) prudent and responsible way of utilizing public resources in what seems as favoritism in public office nominations.

 “The list is a complete departure from values and principles of public service as enlisted under article 232 (1) of the Constitution of Kenya 2010; to wit impartiality, equitability, accountability for administrative acts, transparency, representation of Kenya’s diverse communities among others,” claims LSK in court documents.

The lawyer’s body further notes that once approved, the principal secretaries are expected to serve all the citizens of Kenya regardless of the tribal or political inclinations whose mandates can only be made better if a regional balance and inclusivity is done.

In preliminary objections filed in court, the National Assembly wants the suit struck out by the Employment and Labour Relations Court for lack of jurisdiction.

According to the NA, the appointment and removal from the positions of the Principal Secretaries is not a Labour and employment issue, but a special constitutional innovation.

“The jurisdiction of this Court to interpret and apply the Constitution is not original or unlimited like the High Court. This Court’s jurisdiction is limited to constitutional issues that arise in the context of disputes on employment and Labour relations,” argues the National Assembly in court documents.

It is its argument that the appointment of the Principal Secretaries does not involve any of the parties or raise any employment and labour relation issues.

 “This Court lacks jurisdiction to entertain this matter because the Petitioner lacks locus standi to institute these proceedings,” argued the National Assembly.

The National Assembly further stated that the petition was premature and intended to interfere with its independence.

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