Court suspends directive allowing parastatal bosses to serve beyond 60 years

Mr Joseph Kinyua, Chief of Staff and Head of Public Service. file photo | nmg 

By GALGALLO FAYO

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Summary

• Employment and Labour Relations Court’s Justice Onesmus Makau temporarily suspended the circular, pending hearing of a suit challenging its legality.
• Activist Okiya Omtatah has filed the petition arguing that Mr Kinyua has no legal mandate to issue directives to principal secretaries or authorised officers of government.
• Mr Omtatah argues that the general understanding is that President Uhuru Kenyatta picked Mr Kinyua to serve as the leader of his private staff at State House and that is the reason he was never vetted by Parliament.
• He therefore lacks powers to direct or instruct authorised officers who have been vetted and authorised by Parliament as provided for in the Constitution.

State corporation chiefs were on Tuesday dealt a major blow after the High Court suspended Head of Public Service Joseph Kinyua’s circular that cleared the way for them to remain in office beyond the mandatory retirement age of 60.

Employment and Labour Relations Court’s Justice Onesmus Makau temporarily suspended the circular, pending hearing of a suit challenging its legality.

Activist Okiya Omtatah has filed the petition arguing that Mr Kinyua has no legal mandate to issue directives to principal secretaries or authorised officers of government.

Mr Kinyua, in a circular dated February 27, titled ‘Terms of service for state corporations chief executive officers’, had exempted the CEOs from the mandatory retirement at 60 and from the six-year term limit.

“That an interim order of inaction be and is hereby granted prohibiting the respondent or any of their agents from implementing in any way whatsoever the Circular Ref No. Op/CAB.9/1A of February 27, 2018 issued by the 1st respondent (Mr Kinyua) pending the inter parties hearing of the application,” Justice Makau ruled after certifying the application as urgent. The matter will be heard on April 12.

Mr Kinyua, who occupies an office that does not exist in the Constitution or an Act of Parliament, addressed his circular to all Cabinet secretaries, the Attorney-General and all principal secretaries, who are holders of constitutional offices.

Mr Omtatah argues that the general understanding is that President Uhuru Kenyatta picked Mr Kinyua to serve as the leader of his private staff at State House and that is the reason he was never vetted by Parliament.

READ: Kinyua stops parastatals from taking in new loans

He therefore lacks powers to direct or instruct authorised officers who have been vetted and authorised by Parliament as provided for in the Constitution.

Mr Omtatah also wants the Employment and Labour Relations Court to determine the designation of Mr Kinyua as the Head of Public Service, a post he claims should not exist.

“There is no provision for a separate head of public service apart from the Public Service Commission,” Mr Omtatah argues, noting that the position undermines the authority and functions of the commission.

While he admits that the president has powers to pick a person to work in his office as the chief of staff, Mr Omtatah argues that it is outright illegal and unconstitutional for such a person to perform the duties of head of public service.

The activist argues that retaining the CEOs of public bodies will block advancement of other deserving Kenyans, and is discriminatory against other public servants who are forced to retire upon attaining 60 years.