WHY COURT QUASHED CS MACHARIA NAMATA BOARD APPOINTMENTS.

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BY SAM ALFAN.

A judge has quashed board members of the Nairobi Metropolitan Area Transport Authority (Namata) saying it does not reflect the face of Kenya having been appointed from one community.

Justice Nzioki wa Makau quashed the Gazette Notice dated dated February 5, published by Transport CS James Macharia on grounds that the three were from one ethnic community.

“The only inevitable outcome is an order quashing the Gazette Notice Vol. CCXIII-No. 42 No. 1714 dated February 5,2021 as I hereby do calling to this court the said Gazette Notice and issuing an order quashing it certiorari style,” the Judge ordered.

The judge further directed the three to cease holding the offices as the appointments were unconstitutional.

The court said the appointments disregarded the National values espoused in the constitution.

CS Macharia who is also the chairperson of Nairobi metropolitan area council had re-appointed Mary Waithigieni Chege, Zachariah Karenge Mungai and Ronald Ndirangu Ndegwa for a period of three years.

The judge noted that Chege, Mungai and Ndegwa are all from one ethnic community and do not represent the diverse fabric that is Kenyan nation.

“Their appointment therefore smacks of the evils of old which Kenyans opted to do away in the constitution we took on for ourselves on August 27, 2010,” said the judge.

The Judge further noted that their re-appointment failed to meet the Substantive and Procedural, Constitutional and Statutory requirements applicable in Public Service Appointments.

“It is 2021, the constitution has been in existence for the last 11 years, under article 10 of the constitution, it calls on all Kenyans to uphold the national values and principles of governance and more so all State organs and State officers and public officers,” he said.

The suit had been filed by the Law Society of Kenya who argued that the re-appointment of the three ought to be quashed as the appointments were made without following laid out substantive and procedural, constitutional and statutory requirements applicable in public service appointments.

Through lawyer Manwa Hosea, LSK argued that the re-appointments did not take into consideration regional and ethnic representation and thus disregarded the rule of law, equity, inclusivity, good governance, transparency and accountability as provided under Articles 10 and 232 of the Constitution

“Members of Boards are public officers by definition and to that extent their remuneration is from the public coffers. The nominees to the membership of the Board of NMS ought to therefore have been recruited through a fair, open, competitive, merit-based and inclusive recruitment process and on the basis of integrity, competence and suitability,” claimed LSK President Nelson Havi in an affidavit.

LSK had argued that the constitutional and statutory values and principles governing public appointments are critical safeguards against bribery, cronyism, nepotism, tribalism, favoritism, incompetence, non-inclusivity, unfair competition, discrimination among others.

It argued that advocating for such re-appointment criteria that does not meet the constitutional threshold may also give the executive arm room to abuse public office to reward cronies and consequently discriminate against the qualified and fit to serve.

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