BY SAM ALFAN .
Busia Senator Okiya Omtatah has challenged the ongoing recruitment of Deputy Commissioners of the Kenya Revenue Authority (KRA) terming the involvement of the board in the process as illegal.
Omtatah wants the High Court to suspend the recruitments until the court determines the constitutionality of a section that allows the board of directors to be involved in the exercise.
The board invited applicants in August for rights deputy commissioners including the ones in charge of Trade Facilitation, risk management, revenue & regional coordination and Information Communication & Technology.
Others are deputy commissioners in charge of Human Resources, East & South of Nairobi – Tax Service Office, Supply Chain Management and Regional Coordinator Southern Region.
It is the senator’s argument that to the extent that the law allows the KRA Board to appoint both KRA Commissioners and Deputy Commissioners, is invalid.
He says Section 13(1) of the KRA Act, as amended by Section 80 of Finance Act, 2023, is unconstitutional and, therefore, invalid, null and void ab initio.
“A declaration that KRA Deputy Commissioners should be recruited by the Commissioner-General with the approval of the Board,” seeks Busia Senator.
Employment and Land Court Judge Bryan Ongaya directed the senator to serve KRA and Attorney General, ahead of the hearing later this month.
In his court documents, he wants the court to declare that to the recruitment of KRA Deputy Commissioners based on Section 13(1) of the KRA Act as amended by Section 80 of Finance Act, 2023, is unconstitutional and, therefore, invalid, null and void ab initio.
The petition faults Section 13(1) of the KRA Act, for vesting in the KRA Board the absolute power to appoint both the Authority’s Commissioner-General (CEO), commissioners, and the deputy commissioners, he said.
Being deputies to commissioners, the Deputy Commissioners are senior members of staff who are one tier below the commissioners, Omtatah argued.
“Effectively, where the Board unilaterally appoints them, a direct link to the Board, which sidesteps the CEO and other commissioners is created, and that automatically cuts the CEO off from the rest of the staff,” says Omtatah.
He adds that the arrangement undermines the good governance of the Authority as it creates two centres of power in the secretariat and strips the CEO of some of the powers he has over his deputies and vests them in the Board.
“In fact, by being appointed by the same Board, the Deputy Commissioners are for all practical purposes on the same footing with the Commissioner-General and other commissioners,” he said.
He said Section 6(6) of the KRA Act, the Authority’s Board of Directors is, in agreement with the international best practices, responsible for setting the overall strategy and direction of the company.
“And management is responsible for the day-to- day operations and implementation of the strategy and direction of the company set by the Board.As created under Section 11 of the KRA Act, the Commissioner General is responsible to the Board for all staff members as the Authority’s CEO,” says Omtatah.
Omtatah is inviting the court to intervene and determine the constitutional validity of both Section 13(1) of the KRA Act and the impugned recruitments of the Deputy Commissioners which are being conducted anchored on it.
“It is instructive that under Mwongozo (the Code of Governance for State Corporations), the Board is only supposed to hire the CEO of a public entity. In turn, the CEO then hires all the other staff members,” says the senator.
If allowed to remain as it is, Omtatah said the board is now directly involved in the day-to-day running of the Authority, giving rise to the obvious conflict of interest which arises when the Board meddles in the daily operations of the Authority.
“I urge the employment court to declare both section 13(1) of the KRA Act, and the impugned recruitment of Deputy Commissioners by the Board based on the section, to be unconstitutional null and void ab initio,” pleads Omtatah.
Further, the decision to delete Set of 42 the KRA Act to remove the requirement for the Commissioner-General to appoint heads of departments with the approval of the Board, also undermines good governance, by removing the obvious checks and balances inbuilt therein. In the circumstances, the KRA has become a weak institution with poor governance structures resulting from a bad law for appointing deputy commissioners.
He adds that to deal with the fact that weak institutions have undermined Kenya’s progress, and good governance is paramount for development, there have been efforts to promote structures, institutions and frameworks to promote the same. Since the promulgation of the Constitution, Kenya has, and continues to put in place measures for building a strong, independent and prosperous country for the benefit of her citizens.
