Joseph Kinyua. FILE PHOTO | NMG
Summary
- Mr Kinyua, who was responding to a suit by activist Okiya Omtatah challenging the legality of his job, has told the court that the petitioner has misunderstood his role as Head of Public Service and that of Public Service Commission (PSC) as the two serve different mandates.
- Mr Kinyua argues that the Constitution empowers the President to establish an office in the public service with the recommendation of the PSC, a provision that gives his office the necessary legality.
- Mr Omtatah in a petition pending before the Employment and Labour Relations Court is seeking a declaration that Mr Kinyua, whom he says occupies an office that does not exist in the Constitution or an Act of Parliament, lacks powers to direct or instruct authorised officers who have been vetted and authorised by Parliament as provided for in the Constitution.
The holder of the position of Head of Public Service does not
require parliamentary vetting as it was legally created by the president
as an office in the public service, Joseph Kinyua who occupies the
office has said.
Mr Kinyua, who was responding to a
suit by activist Okiya Omtatah challenging the legality of his job, has
told the court that the petitioner has misunderstood his role as Head of
Public Service and that of Public Service Commission (PSC) as the two
serve different mandates.
Mr Kinyua argues that the
Constitution empowers the President to establish an office in the public
service with the recommendation of the PSC, a provision that gives his
office the necessary legality.
Mr Omtatah in a petition
pending before the Employment and Labour Relations Court is seeking a
declaration that Mr Kinyua, whom he says occupies an office that does
not exist in the Constitution or an Act of Parliament, lacks powers to
direct or instruct authorised officers who have been vetted and
authorised by Parliament as provided for in the Constitution.
Mr
Omtatah is also challenging a circular that cleared the way for heads
of State corporations to remain in office beyond the mandatory
retirement age of 60.
But Mr Kinyua says the circular was misinterpreted as it was only offering clarifications and was not a legal instrument.
“The
petition erroneously asserts that vetting is to be undertaken for all
officers appointed in the public service, and further presumes that all
offices co-ordinating vetted public officers are to be established in
the Constitution for them to undertake the designated mandate,” Mr
Kinyua says in an affidavit filed in court on May 7.
He
further notes that his office is not meant to usurp the roles of PSC
but to co-ordinate the officers of the government on behalf of the
president.
Mr Omtatah holds that Mr Kinyua has no legal
mandate to issue directives to principal secretaries or authorised
officers of government noting that there is no provision for a separate
head of public service apart from the Public Service Commission.
Mr
Kinyua, in a circular dated February 27, titled ‘Terms of service for
state corporations chief executive officers’, had purported to exempt
the CEOs of state corporations from the mandatory retirement at 60 and
from the six-year term limit.
Mr Omtatah argues that
the general understanding is that President Uhuru Kenyatta picked Mr
Kinyua to serve as the leader of his staff at State House and that is
the reason he was never vetted by Parliament.
But Mr
Kinyua defended the circular, noting that it was ‘directions from office
of the president to the state offices as a clarification of the
government’s position on the term of CEOs of state corporations but not
regulatory or statutory instrument.
Issuance of the
circular was necessitated by various contradictory interpretations
regarding the contract status of State corporation CEOs, who have
attained the age of 60 years, he says in court papers.
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