Transitioning from permanent and pensionable to contract terms of service
Salaries and Remuneration Commission (SRC) Chairperson Lyn Mengich (left) confers with Cabinet Secretary for Public Service, Performance and Delivery Management Moses Kuria during a media briefing on the National Wage Bill Conference held at Nairobi Safari Club on April 12, 2024.
The government’s plan to transition civil servants to contractual terms of service begs the question of whether there is a legal framework in place to absorb the shock that this review will cause.
However, reference could be made to the Parliamentary Service Act, 2019, which introduced the employment of top cadre officials on a contract basis as opposed to the time-worn permanent and pensionable terms.
The Parliamentary Service Act, 2000 (No. 10 of 2000) was repealed by the Parliamentary Service Act, 2019 (No. 22 of 2019) to better align with the 2010 constitution.
The Parliament of Kenya website sums up this moment thus: “The introduction and enactment of the Parliamentary Service Act on November 28, 2000 concluded the planting of the embryo of the autonomy of Parliament which had begun on March 20, 1970, when a motion for a resolution by Parliament to give such autonomy was brought to the House for debate by the late Hon. Jean-Marie Seroney.
In Section 26 of the Act, “A Clerk of a House of Parliament shall be appointed by the Commission for a term of five years and is eligible for re-appointment for one further term of five years.”
It adds, “Clerk of a House of Parliament and has completed his or her term of office as set out in law before attaining the age of 60 years shall be compulsorily retired and is eligible for pension payment in accordance with the applicable laws.”
12th Parliament
Three years ago, in the life of the 12th Parliament and under the leadership of the then National Assembly Speaker Justin Muturi, the Parliamentary Service Commission (PSC) implemented the law, and the senior staff signed contracts.
The process affected 46 officers who signed their contracts in March 2021 from PSC scale 17 (Clerk National Assembly and Senate), PSC scale 16 (Deputy clerks), PSC scale 15 (directors), PSC scale 14 (deputy directors and heads of departments).
The National Assembly Clerk Samuel Njoroge was hired in 2022 and therefore has signed a five-year contract, renewable once.
Several legislators took issue with the new employment terms by the PSC to have senior House officials hired on five-year contracts that are renewable once, but left it at that and it was rolled out as planned.
A letter dated October 5, 2020, addressed to the then Clerk of the National Assembly Michael Sialai and his Senate counterpart Jeremiah Nyegenye, the commission affirmed the resolutions of a special meeting held October 2, 2020, to effect the changes, in compliance with the law.
As per the letter, the commission indicated that it considered a paper on the implementation of Section 26 of the PSC Act, 2019, as contained in Commission Paper No 1317 and its resolution.
“Section 26 of the Parliamentary Service Act, 2019, as read together with Section 56 (5) of the Act affects the current holders of the offices of the Clerk of the National Assembly and the Clerk of the Senate/Secretary, PSC,” reads the letter the Nation has seen.
The letter, however, stresses on the effective and efficient service delivery as stipulated in Article 127 of the constitution and as read with section 31 and 32 of the Sixth schedule to the constitution.
The changes and conversion of staff terms was also backed by the section 26 and 56 (5) of the Act effective January 2021.
Global best practice
Mr Muturi then backed the decision to have senior management on contract, saying it will ensure the efficiency and effectiveness of staff.
He also dispelled the notion in public service that when an officer retires, or leaves, the position is automatically filled by the deputy or the person next in line.
The Speaker then explained that those targeted were from the position of deputy director and above who signed the performance contracts to increase output as is the case in other jurisdictions.
Mr Muturi suggested that the decision taken by PSC should be scaled down to lower levels to include PSC 8 and 9 and the entry point of university graduates, arguing that this will drive output and increase performance.
Legislators get five-year terms before seeking re-election, which is how their performance is gauged.
Public Service and Delivery Management Cabinet Secretary Moses Kuria’s campaign to ensure permanent and pensionable staff revert to contract terms ostensibly to enhance service delivery in public service, will test the legal threshold.
