State agencies locked in turf war over staff hiring
Two influential government agencies are involved in a spat over the control of hiring of staff in parastatals and public universities.
The Public Service Commission (PSC) has put its foot down and, citing various laws and court pronouncements, maintained it is the only entity given constitutional authority to employ, issue terms and conditions of service, review, audit, and advise with regard to public service.
PSC has consequently told State corporations and public universities that they do not require approval from the State Corporations Advisory Committee (SCAC) to recruit their staff as earlier advised by the Attorney General Justin Muturi.
In a letter dated December 5 and addressed to the Principal Secretary National Treasury Chris Kiptoo, the PSC said the regulation of the human resource of State corporations fall squarely under the constitutional mandate of the PSC, adding that the SCAC has been exercising powers it did not have.
“Any human resource management instruments for State Corporations and Public Universities that have not been approved by the Public Service Commission are unconstitutional, null and void,” the Public Service Commission CEO Simon Rotich said.
The PSC said the Attorney General had on July 27 this year issued an advisory that is contrary to court pronouncements on the matter.
“Consequent to the advisory, SCAC issued a circular on August 8 in that regard and attempted to undermine the Commission’s constitutional and legal mandate as clarified by the courts,” PSC said.
The PSC further said that on the strength and authority inter alia the Constitution, the PSC Act, 2017, the PSC Regulations 2020 and various court pronouncements, the SCAC does not have requisite legal authority to approve the human resource management instruments for State corporations and public universities.
The PSC said the question as to which entity has the requisite constitutional and legal mandate to approve human resource instruments in the public service and specifically for State corporations and public universities has been settled by the courts of law in this country.
“The above decisions have neither been stayed or varied nor set aside by any Superior Court of record in Kenya,” the CEO wrote.
In a judgement delivered on January 25, 2022 in the case of Manyara Muchui Anthony vs Communications Authority of Kenya, the Court found and held inter alia that Section 5(3) of the State Corporations Act to be in conflict with Article 234(2) as read together with Article 260 of the Constitution on regulation of the public service and definition of who a person in the public service is.
“The entity given Constitutional authority to employ, issue terms and conditions of service, review, audit, and advise with regard to public service is the Public Service Commission. Employees in the Service… are subject to the constitutional mandate of the Public Service Commission,” part of the judgement quoted reads.
In another judgement delivered in the case of Consumer Federation of Kenya (Cofek) vs National Social Security Fund Board of Trustees, the Court found and held, inter alia, that there is sufficient constitutional, statutory provisions and judicial articulations to the effect that employees of State corporations are public officers in the public service.
“For the foregoing reasons, it is the finding of the court that the Public Service Commission has the constitutional mandate to exercise the powers and functions under Article 234 of the Constitution over the public service, the Attorney General’s legal opinion No. AG/CONF/4/127 Vol.II of August 21, 2014 notwithstanding,” the court ruled.
The PSC, however, said the SCAC or any other expert may assist State corporations and public universities in the development of their human resource management instruments but the eventual approval of the said instruments before implementation must be sought and obtained from the commission.
Rotich said it had come to their attention that whenever State corporations and public universities request for approval from the National Treasury to recruit their staff, they are required to submit, among other things, confirmation that their human resource instruments have been approved by the SCAC, based on a Circular Ref. OP/CAB.9/1A dated February 7, 2022 from the Head of Public Service.
The confusion, according to the PSC, was hampering efficiency and effectiveness in the public service within state corporations and public universities.
“This requirement from the National Treasury is against the Circular and Guidelines dated August 8, 2023 that had been issued by the Commission on the development and review of human resource management instruments for State corporations and public universities.
Rotich added it was against the above background that the Commission had deemed it necessary to proffer advisory to the National Treasury so that these institutions are lawfully facilitated through the requisite approval from legally mandated entities so as to conduct the recruitment of their staff whenever vacancies arise in various positions within their establishments.
Though the functions and powers of PSC under Articles 234(1) and (2) do not apply to the offices identified in Article 234(3), the list of exemptions does not include officers in the State corporations.