BY SAM ALFAN.
Activist Okiyah Omtata has moved to court seeking to stop the Parliamentary Service Commission and the outgoing National Assembly from appointing a clerk who will serve the 13th Parliament.
The activist wants the court to issue a permanent injunction prohibiting PSC from filing the position arguing that the process has not been transparent and accountable.
He accuses the PSC of failing to involve the public in the process arguing that the recruitment process contravenes express provisions of the Constitution on the rule of law, public participation, and transparency and accountability. Further and in particular.
“A declaration is hereby issued that the National assembly and parliamentary service commission of the 12th Parliament cannot appoint a clerk of the national assembly of the 13th Parliament and that the parliamentary service commission failure to publish the long list of all applicants and the shortlist of candidates for appointments as clerk of the national assembly was fatal to the ongoing recruitment process,” he says.
Omtata further wants the court to declare that the national assembly and PSC of one Parliament cannot recruit a clerk of next national assembly or the next Parliament.
He says the move violates article 128 clause 1 of the constitution and continues to be brightened to the extent of exiting national assembly and the outgoing PSC of the 12th Parliament are recruiting the clerk of the next Parliament.
He adds that the opaque manner of recruitment violates both the constitution and national registration of the constitution and section 5 of access to information acts, 2016 and the failure to provide for transparency, accountability and public participation in the recruitment process violates article 10, 47 ( 1 )and 232 if the constitution.
The activist says the recruitment process is being undertaken in violation of clear provisions of the constitution and the national assembly.
He argues that since the House has a five-year lifespan, and seven members plus the Chairman of the 10 member Parliamentary Service Commission have to be MPs and that the Commission’s life is tied to that of the National Assembly.
“Effectively, each Parliament appoints its Commission, including the two independent members under Article 127(2)(d) of the Constitution.
“Clearly, by tying the Commission’s life to that of Parliament, the framers of the Constitution ensured the autonomy of each Parliament from the next”, says Omtatah.
He adds that in the scheme of things, each House dies with its appointments, save for provisions for the transition from one house to the next of Commissioners of the PSC under Article 127(5) of the Constitution and it is instructive that the office of the Commission Chairman, which is vested in the Speaker of the National Assembly, is not preserved in the transition period.
“From the above deliberate design, the National Assembly and the Parliamentary Service Commission of the 12th Parliament, cannot appoint a Clerk of the National Assembly of the 13th Parliament and contrary to the above, and in clear violation of Article 128(1), the outgoing PSC is recruiting a new Clerk of the next National Assembly to be approved for appointment by the outgoing House”, he adds.
He said to make matters worse, the recruitment is shrouded in secrecy. Since the adverts went out in February 2022, the PSC has never published the long lists of persons who applied for the positions, and has also never published the shortlists of candidates, yet interviews were quietly held at Parliament Buildings in Nairobi on Tuesday, 11th July, 2022.
Only the candidates to be interviewed were secretly notified of the interviews.
He said there is no provision for public participation in the entire recruitment process.
The Public Service (Values and Principles) Act No. 1A of 2015 provides at section 10 for fair competition and merit as the basis of appointments and promotions. Further, section 11 provides for public participation and involvement in the promotion of values and principles, among them fair competition and merit as the basis of appointments.
He said that the impugned recruitment process runs contrary to the content and spirit of transparency and accountability pursuant to Articles 10(2), 35(1) & (3), and 232(1)(f) of the Constitution of Kenya 2010, as read together with Section 5 of the Access to Information Act No. 31 of 2016, which place the obligation on the State to publish and publicise any important information affecting the nation.
There is an obligation in law under Article 35(1) & (3) of the Constitution as read together with section 5 of the Access to Information Act, 2016 to publish and publicise the long list of names of all persons who applied for the advertised jobs and also the requirements for transparency, accountability and public participation under Articles 10 and 232 place an obligation on the PSC to publish and publicise the venue, time, and shortlists of names of candidates for interviews and to provide ample notice and opportunity for public participation.
