BY SAM ALFAN.
Attorney General Justin Muturi wants case filed by the Law Society of Kenya challenging the planned creation of the positions of the Chief Administrative Secretaries (CAS) by Public Service Commission dismissed.
The AG through state counsel Oscar Eredi filed a preliminary objection challenging the jurisdiction of Employment and Labour Relations Court to handle the case.
“Under Article 162(2)(a) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act, Cap.234B of the laws of Kenya, this Honourable Court lacks the requisite jurisdiction to hear and determine this Petition and the accompanying Notice of Motion Application,” says AG.
The government chief legal advisor adds that by dint of Article 165(3)(d)(ii) of the Constitution, it is the High Court that is vested with the jurisdiction to determine the question as to the legality or otherwise of the actions of the President in establishing the CAS office.
He argues that the establishment of the office of CAS pursuant to Article 132(4)(a) of the Constitution does not fall within the ambit of the Employment Court.
Justice Monica Mbaru suspended plans to establish the said office by the PSC, pending the 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 a chance from giving informed views.
This was after PSC published a communique last month inviting the public to submit its views on the creation of the position.
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.
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.
