Court faults Attorney General for HR power grab in parastatals

According to court papers, this position effectively suggested that the PSC has no constitutional mandate over the State Corporation’s human resource policies, establishment structures, or appointments.

However, the court has declared that both offices-AG and SCAC- had unlawfully encroached on the constitutional mandate of the PSC. The court said their interventions were unconstitutional.

It stated that both offices violated the constitutional mandate of the PSC by attempting to control human resource policies in the parastatal sector.

There are 280 operational State Corporations in the country, according to the Inspectorate of State Corporations, and 38 public universities, according to the Commission for University Education.

The court found that the AG’s advisory letter, which was endorsed by SCAC a month later through a circular in August 2023, sought to usurp the PSC’s authority over personnel management in State corporations.

The judgment emphasized that such actions violated Article 234 of the Constitution, which vests the PSC with exclusive powers to oversee human resource policies across the public service.

“It is crystal clear to me that the advice given by the second respondent (Attorney General) does not meet the constitutional threshold and is therefore illegal, null, and void,” the judge stated.

The ruling further noted that the AG’s advisory had disrupted the established governance framework, creating confusion in a sector already grappling with conflicting legal interpretations.

The case was filed by activist John Githongo and the Katiba Institute, who argued that the AG’s directive —asserting that the PSC lacked authority to determine terms of service for State corporations— was an unconstitutional overreach.

They said the Attorney General’s advisory and the follow-up circular from SCAC, undermined the Constitution and sowed confusion in a sector already struggling with competing legal interpretations.

The contested advisory, addressed to board chairpersons of all State corporations and copied to senior government officials, including the Prime Cabinet Secretary and Head of Public Service, claimed that human resource policies fell under the jurisdiction of Cabinet Secretaries working with SCAC.

The AG’s letter claimed that the PSC lacked jurisdiction to approve human resource policies for these entities. Instead, it vested this authority in the Cabinet Secretary and SCAC.

The court rejected this position, affirming that State corporations are integral to the public service and thus fall under the PSC’s regulatory oversight.

Citing Article 260 of the Constitution, the judge ruled that employees of State corporations are public officers, and their terms of service must conform to standards set by the PSC.

“State corporations collectively fall within the Government of the Republic of Kenya, as captured under the definition of ‘public service’ in the Constitution,” the judgment stated, adding that by quashing the two contested letters and reasserting PSC’s authority, the court was restoring clarity.

The court further dismissed attempts to justify SCAC’s role through the State Corporations Act, declaring Section 5(3) unconstitutional for seeking to exclude the PSC from its rightful functions. The court said the legal provision contravened the Constitution by attempting to strip the PSC of its mandated functions.

“SCAC has no constitutional role in discharging this function,” the court held, adding that its circular was “unconstitutional, unlawful, null, and void from inception.”

The judgment also rebuked the Salaries and Remuneration Commission (SRC) for issuing direct advisories to State corporations, bypassing the PSC.

Describing such actions as “cheering anarchy,” the court ruled that the SRC must channel all remuneration advice through the PSC to maintain constitutional order.

“It is not permissible for SRC to bypass PSC in matters pertaining to terms and conditions of public service,” the judge asserted.

Beyond nullifying the contested advisories, the ruling reinforced the PSC’s supremacy in approving organizational structures, staff establishments, and human resource manuals across public institutions. It clarified that State corporations and public universities are not autonomous in employment matters and must comply with PSC regulations.

Additionally, the court urged Parliament to amend outdated provisions of the State Corporations Act to align with constitutional provisions.

It stressed that constitutional powers vested in the PSC cannot be reassigned through legislation or executive directives. “Any interpretation suggesting otherwise is incorrect,” the judge ruled.

The judgment also established a precedent on the legal weight of the AG’s opinions, stating that they are binding only in the absence of judicial interpretation.

The court said the Attorney General’s advice is binding on government organs unless overturned by a court and that they remain subject to judicial scrutiny.

The judge noted that the court’s intervention was necessary to stop the confusion caused by conflicting directives. It said this confusion had undermined the PSC’s constitutional mandate and risked destabilizing governance structures across State corporations.

Observing that the ruling resolves jurisdictional conflicts among government bodies, where overlapping directives from Cabinet Secretaries, SCAC, SRC, and the PSC created confusion in public administration, the court warned that allowing multiple centers of authority over human resource matters would erode Kenya’s constitutional framework.

“Where is the consistency with Article 234 when the PSC is completely sidelined?” the judge questioned.

The court noted that the judgment was to ensure that all State corporations and public universities operate under the PSC’s oversight.

→ [email protected]