OMTATAH MOVES TO STOP NKEDIENYE’S REMOVAL AT WATER AGENCY.

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BY SAM ALFAN.

Human Rights activist Okiya Omtatah has challenged the decision by President Uhuru Kenyatta replacing former Kajiado governor David Ole Nkedienye as the Chairperson of the National Water Harvesting and Storage Authority.

In a petition at the Employment and Labour Relations court, Omtatah wants the court to quash the appointment of Erick Okeyo who replaced Nkedienye.

He said the decision to singlehandedly appoint Okeyo without the authorisation of the Board is illegal.

In a press advertisement, the body commenced the recruitment of the Authority’s substantive Chief Executive officer.

The advertisement on March 25 2020 also changed the eligibility requirements for the job set in Section 33(2)(b)&(c) of the Water Act from a bachelors degree to Masters.

He said the advert also reduced the required experience from 10 years to 15 years and the term of the CEO was reduced from five to three years contrary to Section 33(5) of the Water Act .

“An order suspending Gazette Notice No. 2355 of March 10, 2020, which was published in Nairobi on March 20, 2020 in the Kenya Gazette Vol. CXXII —No. 50, revoking the appointment of David Ole Nkedienye as Chairperson of the Board of the National Water Harvesting and Storage Authority and simultaneously appointing Erick Okeyo to replace him pending hearing and determination of the case”, Omtatah urged the court.

Omtatah further wants the court to issue a temporary order prohibiting the Public Service Commission, Attorney General and National Water Harvesting and Storage Authority board whether by themselves, any of their employees, agents from giving effect to Gazette Notice published on March 10.

The notice revoked the appointment of Nkedienye as Chairperson of the Board and simultaneously appointing Okeyo to replace him.

He wants the court to order the suspension of the Press advert commencing the recruitment of the substantive CEO.

The Activist argued that the President does not have any capacity or power under any provisions of the law to act in the manner he did.

In particular, conditions for the removal of a member of the Board are clearly spelt out in law at paragraph 6(1) of the First Schedule to the Water Act, he said.

He argued that this is not a case of the President invoking the wrong provisions of the law “his is a clear case of the President acting contrary to the law. Even Section 7(3) of the State Corporations Act (Cap. 446) which empowers him to intervene in Boards, only allows him to remove and replace members of Boards only for the reminder of the term not served by the exiting/removed member.

Under the section, the President cannot appoint a person for a full three-year term as he purported to do in the current case”,.

He further adds that the appointment of Okeyo to be Chairperson of the Authority for three years and not for the remainder of the tenure of Nkedienye which expires in February 6, 2022 or thereabouts, violates the express provisions of the Act.

He also adds that even if the President had acted pursuant to Section 7(3) of the State Corporations Act, his action would still have been null and void because he did not proceed pursuant to Section 7(1) of the Sixth Schedule to the Constitution, which decrees that all law in force immediately before the effective date shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.

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