BY SAM ALFAN.
The appointment of new National Health Insurance Fund CEO Peter Gathenge has been challenged in court over failure to subject him to a competitive process.
Activist Okiya Omtatah filed the case at the Employment and Labour Relations court seeking to quash the appointment saying the NHIF Board handpicked and appointed him to be the Fund’s CEO without subjecting him to a fair, open, competitive, merit based, and inclusive recruitment process open to public participation.
Under certificate of urgency, he wants the case heard and determined during the current recess before Dr Gathege assumes the job.
“I am apprehensive that if the application is not heard and determined immediately during the current vacation/recess of the court, Dr. Peter Kamunyo Gathege will assume office and execute the mandate of the CEO of the NHIF, and may do things that it will be impossible for this Court to undo even where the petition is successful,” says Omtatah.
Other than quashing the appointment, Omtatah wants Dr Gathege replaced by the person who emerged top in the first recruitment process.
He argue that unless the application is urgently heard and determined, his rights and the people of Kenya will suffer great loss as the Constitution and the rule of law will continue to be violated or threatened by NHIF Board, Public Service Commission, Health cabinet secretary Mutahi Kagwe and Attorney General Kariuki Kahara
He said NHIF Board actions are a deliberate and contemptuous violation of the express provision of the Constitution and national legislation, and are designed to archive undeclared collateral purposes.
According to him, the recruitment was opaque and shambolic and that the Board abandoned a responsive recruitment process which commenced in the July 2019 and names forwarded to the CS.
Dr Gathenge was named the CEO on April 9 by NHIF Board.
Omtatah said to make matters worse, the Board ignored his letter dated and hand delivered to the NHIF Chairperson on 5th March 2020, seeking clarification on the recruitment process.
He invites the Court to determine whether, where persons met the eligibility thresholds set in the July 2019 advertisement for the position of the CEO for NHIF, the Board has the power to decline to appoint as CEO the top candidate from those it interviewed for the position, and settle on a total stranger to the position as it has done.
“I am aggrieved that, in refusing to appoint as CEO the candidate who emerged top at the interviews, the Board, is in breach of the specific provisions of the Constitution and statute, which require appointments to be competitive and on merit,” he said.
Sometime in February 2020, Hannah Muriithi, the Chairperson of the Board and Health Principal Secretary Susan Mochache told the Parliamentary Health Committee that the recruitment process which commenced with advertising the vacancy in July 2019 was responsive, and that the Board had forwarded names of three successful candidates to the outgoing Health Cabinet Secretary (CS) for appointment of a substantive NHIF boss, and that the Board was awaiting the appointment of the new substantive CS who was going to appoint the CEO from those names.
Under Section 10(1) of the NHIF Act, 1998, the CEO of the NHIF is appointed by the Board with no reference to the Health CS. It is therefore not clear why the Board appears to have abdicated this responsibility and passed the matter over to the Health CS. However, the CS has a duty to ensure that the Board appoints the CEO through a fair, open, competitive, merit based, and inclusive recruitment process open to public participation.
The NHIF Act was amended by the Statute Law (Miscellaneous Amendments) Act, No. 18 of 2014 to remove the power of the Health Minister to appoint the CEO.
He argue that the Board deliberately used the old un-amended 1998 Act to delay the appointment of the CEO by referring the three names to the Minister for appointment.
The CEO is responsible for the day to day management of the Fund. He also doubles up as the secretary to the Board and an ex officio member of the board.
