Former trade Cabinet Secretary Adan Mohammed has accused the incumbent CS Peter Munya of backdating a Presidential gazette notice in order to have former Export Processing Zone (EPZ) chief executive officer, Fanuel Odede Kideda reappointment terminated to enable him appoint a candidate of his choice.
Adan in his letter responding to an affidavit filed in court by Munya claims that the term of Kideda was to expire on September 20,2018 and he reappointed him against extending his term in office for another period of three which was to take effect from September 23,2018.
According to a gazette notice attached to court documents by Kideda shows that Munya back dated the said notice to September 20, 2018 from October 2,2018.
The CEO claims that Munya later fired him Verbally which which contravenes his contract terms.
The then CS also says that he received the recommendation of board of directors of EPZ forwarded to him under cover of a letter date July 6,2018 informing him that the board had resolved to recommend the reappointment of Kideda for a further period of three.
Aden says that upon receipt of the recommendation and having certified him self that the basis of the recommendation was sound he accepted the same and notified the session chairperson of the board date July 11,2018 that kideda had be reappointed as the CEO for a further period of three years with effect from September 22,2018.
He further says that at the time of making the appointment he intense that there would be no gap between the time of tenaru of the CEO ended and reappointment of a CEO.
Aden says that he communicated the reappointment in good time for the purpose of ensuring continuity and certainty operation of the Authority according to powers betstomed upon him by section 6(1)of EPZ act.
” I was the CS in charge of cooperative and the allegations that the appointment of Kideda could not take effect prior to Munya seeing the document is in correct coz at the time of issuing the latter of reappointment l was the relevant CS. It follows that the contract signed on July 31,2018 is valued and biding having been issued on the strength of my letter date July 11,2018,”says Aden in his letter.
Adan further said that the issue of cabinet reshuffle referred in the affidavit has no effect on the letter issued on July 11,2018 when he was still the relevant Ministry of Trade.
The then trade CS says that regarding his travel to the USA has no effect or relevance to the reappointment of the Kideda.
“Travels by CS’s do not take away their authority or power under the enabling statue. A CS can conduct the affairs of his office from any place and does not have to be physically present in his office, ” says Adan.
He further confirms that the reappointment of the petitioner (Kideda) was done in discharge of his functions of the CS prior to the reshuffle and without expectation or knowledge of the reshuffle or the the appointment of the current secretary.
He said that the allegation of bad fair in the relation to the current holder officer of EPZ does not therefore arise.
At the same time Kideda has since filed an application seeking to have Munya be held in contempt of court for repeatedly disobeying court orders issued in December last year.
Kideda claims that Munya has failed to obey court orders issued last year by Justice Hellen Wasilwa of Employment and Labour relations High court that he be paid his four-month salary for September, October, November and December,2018
“Munya has to be found guilty of contempt of this court orders as there has been established beyond reasonable doubt,”says Kideda in his court documents
Kideda through Dunstan Omari claims that the trade CS has facilitated the disobedience of court orders and substantively interfered with the administration of justice and he has offered no plausible reasons as to why he has not obeyed the orders of the court issued last December.
At the same time the former CEO has accused acting CEO and the accounting officer George Makatelo for not facilitating his payment.
“Further attempts to provide cover for the alleged contemnors by alluding to my supposed failure to clear with EPZ as a reason for fully complied with the orders of the court and yet he knows very well that the process of clearing is a function instituted and undertaken by the Human Resource Department which he heads and an exercise that is carried out only upon termination of employment, ”claims Kideda.
However Trade CS Munya in his replying affidavit says that the court’s order to pay Kideda salary from September up to December 2018 is enforceable as it goes against the principles of legality, effective and efficient management of public finances as provided in the Public Finance Management Act 2012 since Kideda was not working for the period September 20 2018 till December 31 2018.
“There is no evidence or supporting documentation annexed therein to demonstrate any positive, good faith acts performed by him to facilitates the obedience of this courts clear orders of December 11 2018 as those orders remain disobeyed and ignored by EPZ,”says Munya
The Trade CS further claims that he appointed George Makatelo as the acting EPZ CEO and the accounting officer so as to enable the Authority commence and complete a competitive recruitment process of a substantive CEO as per section 15 of the Guidelines of terms and conditions of service for State Corporations, Executive officers, chairmen and Board Members Management Staff and Uniozable Staff, 2004 which requires new appointments of CEOs to be competitive.
“On September 29 2018, I appointed the Makatelo as an acting Chief Executive officer and it was well within my mandate as the term of the former CEO has expired, ”Munya argues.
In December last year, Justice Hellen Wasilwa issued order directing Munya to withhold the appointment of George Makateto to replace Kideda.
Employment and Labour Relations Court ordered Kidenda to be paid salary for the work already done upto December this year.
“Pending hearing of the petition, an order of injunction is hereby issued restraining CS Peter Munya and whether acting by themselves, agents,officers or whosoever to cease from declaring the position of Chief Executive Officer of the EPZA vacant and desist from recruiting or hiring persons to fill the position of Fanuel Kidenda as the Chief Executive Officer even in acting capacity,” ordered judge Wasilwa.
Justice Hellen Wasilwa of the Employment and Labor Relations Court said the matter was a unique since two CS’s are fighting over the appointment of Kidenda.
