Court throws out Cofek case against PSs appointment

The Consumers Federation of Kenya (Cofek) secretary general Stephen Mutoro. The lobby's case challenging the recruitment of principal secretaries has been dismissed June 4, 2013. FILE 

By GALGALLO FAYO
 

 

In Summary

• Ruling paves way for President Uhuru Kenyatta to name the new officials.
• Interviews of the 155 candidates for the positions have been finalised and a short-list of 66 forwarded to Mr Kenyatta to select 22 nominees.
• The commission conducted the interviews in camera, breaking away from precedent set by JSC and parliamentary vetting committee.

The High Court has dismissed a case challenging the appointment of principal secretaries, paving the way for President Uhuru Kenyatta to name the public officers.

Justice Isaac Lenaola said the suit was premature since the process is ongoing and the public can participate during vetting by parliament. He said the law recognises legislators as the representative of the people.

The case was filed by Consumers Federation of Kenya (Cofek) arguing that the recruitment was flawed and that the Public Service Commission (PSC) failed to follow the law.

“There is an opportunity for a second time for the people to participate indirectly in raising issues, good or bad, about the persons recommended for appointment because parliament, before approving any applicant will scrutinise their suitability for the office of principal secretaries,” said Justice Lenaola.

Interviews of the 155 candidates for the positions have been finalised and a short-list of 66 forwarded to Mr Kenyatta to select 22 nominees.

There are 18 Cabinet secretaries now in charge — the Constitution puts a ceiling of 22 — of bigger portfolios compared to the previous regime. This means some ministries will have more than one principal secretary.

The commission conducted the interviews in camera, breaking away from precedent set by Judicial Service Commission and parliamentary vetting committee, forming basis for the Cofek case.

“The PSC decision to secretly recommend to the President names of persons for principal secretaries was unconstitutional, unjustified, capricious, unreasonable, malicious, unilateral and was tantamount to discrimination and against the rules of natural justice,” Cofek had said.

However, Justice Lenaola said there is no any provision in law that makes it mandatory for the PSC to conduct the interviews in public unlike the judicial commission. He added that the proceedings have been recorded and any one has a right to access it.

The judge said that the names of applicants were published on the website which was cheaper and saved public funds.

Justice Lenaola said that PSC is a constitutional commission and the court lacks basis to direct it in the absence of any express provision of law.

Regarding the queries raised by the Ethics and Anti-Corruption Commission on some of the nominees for the positions, the judge said the anti-graft body didn’t reveal substantive details on the applicants under investigations to warrant considerations.

“A court cannot and should not condemn a party on the basis of suspicious generalities which have not been carefully crafted to enable the party under attack respond comprehensively to the allegations of lack of integrity,” he said.