BY PHOEBE WANJOHI.
The Employment and Labour Relations Court has suspended interviews for the positions of General Manager or Chief Executive Officer (CEO) of the Bomas of Kenya Limited which were scheduled for Wednesday, January 8 2020.
Justice Byram Ongaya suspended the interviews including that of the Chairperson of the Bomas of Kenya Board Josiah Magut after activist Okiyah Omtatah filed an application under certificate seeking to stop the said interview.
“Pending the inter parties hearing or further orders by the court, there be stay of process of interviews, recruitment, selection and appointment of a substantive holder to the office of the General Manager or Chief Executive Officer for the Bomas of Kenya Limited flowing from the declaration of a vacancy in that office and inviting applicants in the publication of vacancy closing the applications by Monday November 13, 2019.” Ordered the judge.
Omtatah file an application seeking orders to suspend the interviews for the vacant position of the General Manager or Chief Executive Officer (CEO) of a state corporation, The Bomas of Kenya Limited, which are scheduled to be held on Wednesday January 8, 2020.
He said the recruitment process leading to the interviews has been carried out in blatant and contemptuous violation of the express provisions of the Constitution and national legislation, including on rule of law, transparency, competitiveness, inclusiveness, merit, and public participation.
He argues that the Board of the Bomas is itself unconstitutional to the extent that the Chairman and its independent members were handpicked and appointed, respectively, by the President and the Cabinet Secretary in contravention of the express provisions of the Constitution, national legislation, and case law that public offices should be filled through a transparent, competitive, inclusive, and merit based recruitment process open to public participation.
“The constitutional rights of the applicant/petitioner and of other Kenyans will be gravely compromised and violated if the respondents are allowed to interview candidates in violation of the law,” says Omtatah.
He is aggrieved that the Chairman and the independent members of the Board of the Bomas of Kenya were handpicked and appointed to public office in contemptuous contravention of the law which requires that public offices be filled through a competitive, inclusive, and merit based recruitment process open to public participation.
“The petitioner is aggrieved that the Bomas Board is incompetent to the extent that it failed to recruit a substantive CEO before the tenure of the immediate former CEO expired on September 30, 2019, and it has failed to recruit the company’s new CEO strictly according to the law.” reads the court papers
He also argues that the on-going recruitment process which is being carried out by the Board to fill the vacant position of the CEO of the Bomas of Kenya Limited (hereinafter, ―the Bomas‖) is being conducted in contemptuous violation of very clear provisions of the Constitution and national legislation.
He urgues that both the appointment of the independent Board members and the impugned recruitment process are so tainted with violations of the law, including the Constitution that they must both be called out and be quashed by the Court.
“With the above in mind, the petitioner prays that this Honourable Court disbands the Board for being improperly constituted, and quash the on-going recruitment process for the new Bomas CEO, for being unreasonable, irregular, unlawful, and therefore, unconstitutional, null and void.” Argue’s Omtatah.
The Chairman and the independent members of the Bomas Board of Directors were handpicked and appointed to public office through various gazette notices without being subjected to a transparent, competitive, inclusive, and merit based recruitment process open to public participation as required by the Constitution and national legislation.
Further and in particular: Vide Gazette Notice No. 4290 of May 3, 2019, Uhuru Kenyatta, President and Commander in-Chief of the Kenya Defence Forces, reappointed Josiah Magut to be the Chairperson of the Bomas of Kenya Board, for a period of three (3) years, with effect from May 7, 2019.
He also said Vide Gazette Notice No. 9724 of September 20, 2018, the Cabinet Secretary for Tourism and Wildlife appointed Francis Nkoitoi, Robert Kariuki, William O. Osewe, and Beth Syengo to be members of the board of the Bomas of Kenya, for a period of three (3) years, with effect from September 20,2018.
Omtatah also added that Vide Gazette notice no. 1233 of February 8, 2019, the Cabinet Secretary for Tourism and Wildlife appointed Layi Khamisi Jaber to be a member of the Board of the Bomas of Kenya, for a period of three
(3) years, with effect from February 7, 2019.
Further, he argues that the recruitment and appointment of the Bomas CEO is reserved for the entire Board.
On September 30, 2019, the tenure of the former CEO expired and he vacated office without the appointment of either a substantive or an acting replacement to the office.
The Board ought to have appointed a substantive CEO before September 30, 2019 but it failed to do so.
He adds that pursuant to the Government Circular Ref. No. OP/CAB.9/21/2A/LII/43 of November 23, 2004 , titled, Guidelines on Terms and Conditions of Service for State Corporations’ Chief Executive Officers Chairmen and Board Members Management Staff Unionisable Staff, (hereinafter, the ―Guidelines on Terms and Conditions of Service for State Corporations 2004) the Board ought to have appointed an acting CEO and sent the outgoing CEO on terminal leave six months before the expiry of his tenure, and then commence the process for recruiting a substantive CEO.
On October 22, 2019 the Bomas Board of Directors invited suitably qualified candidates to apply for the post of CEO.
The deadline for applications was on November 11, 2019.