COURT STOPS PLANS TO ESTABLISH OFFICE OF THE CAS.

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Labour Relations Judge Lady Justice Monica Mbaru who stopped Public Service Commission from establishing office of Chief Administrative Secretaries./PHOTO BY S.A.N.

BY SAM ALFAN.

Employment and Labour Relations Court has stopped plans Kenya Kwanza government to establish the office of the Chief Administrative Secretaries, after the Law Society of Kenya moved to court.

Justice Monica Mbaru suspended plans to establish the said office by the Public Service Commission, pending hearing and determination of the case by LSK.

LSK argues that the PSC invited views from the public but left out crucial information that will deny Kenyans from giving their informed views.

The lawyers’ umbrella body wants the court to declare that the Advert of PSC dated September 21, 2022 is illegal and irregular, for violating Section 27 (l) of the Public Service Commission Act, and for failing to include fundamental details.

“A Declaration that the Advert of the 1st Respondent (PSC) dated 21st September 2022 is illegal, irregular, and unconstitutional for violating Article 201 (d) as read with Article 155 of the Constitution as it seeks to establish an office in the public service with duplicity of roles as that of the Principal Secretary contrary to the principles of public finance,” LSK pleads.

PSC published a communique last month inviting the public to submit its views on the creation of the position.

Under the said communication, the functions of the proposed position of CAS include providing liaison with the National Assembly and the Senate, providing liaison with the County governments on matters of concurrent mandate and common interest, enabling inter-ministerial co-ordination, representing the Cabinet Secretary at any meeting as instructed by the Cabinet Secretary and executing any other duties as instructed by the office of Cabinet Secretary.

The qualifications for the said position were also listed in the said publication. However, despite inviting the public to give its views, LSK says the PSC intentionally failed to provide crucial information to facilitate informed participation of the people.

LSK argues that the information contained in Section 27 (1) of the Public Service Commission Act (Par 9 above) is fundamental to the involvement of the people and failure to publish it is fatal to the principle of Public Participation as articulated in Article 10 (2) and 232 (l) (d) of the Constitution.

“The Petitioner further contends that Public Participation is not a mere formality but an exercise that must be aimed at collating the views of the public in decision-making. The Advert by the 1st Respondent is hollow and is only meant to sanitize an otherwise illegal and irregular process,” adds LSK.

LSK adds that for the said positions to be legally established, the invitation for public views must be properly enriched to provide the public with relevant information including the effect on the public coffers. This, the LSK said, is particularly important owing to the current climate of significant economic distress being experienced by Kenyans.

“From the foregoing, there is likely to be duplicity of roles between the Principal Secretaries and the CAS, which would further bloat the public wage bill without corresponding improvement of service delivery in the public sphere,” says LSK.

LSK adds that the failure to provide crucial information to the public as contained in Paragraph 9 herein makes the said public participation exercise a nullity which must be quashed.

“As currently crafted, the Press Release inviting members of the public to give their views on the creation of the position of the Office of Chief Administrative Secretary was inadequate to invite informed responses. It is unclear on the nature of views the advert intends to elicit as it fails to provide crucial information under Section 27 (l) of the Parent Act,” LSK adds.

According to LSK, without such information, it is impossible for a reasonable person to differentiate roles of the Principal Secretary as established under Article 155 of the Constitution and those of the Chief Administrative Secretary as intended to be established.

LSK further states Kenyans are struggling with the economy, which has caused a financial strain on many people and pushed taxation beyond the elastic limit of majority of Kenyans.

“In that way, the public would not be forced into cater for extra wages of work that could be done by an already established constitutional office,” the LSK said.

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