Lobby group in court to challenge former TSC boss Lengoiboni's retirement

A lobby group in Homa Bay County has gone to court seeking the reinstatement of former Teachers’ Service Commission (TSC) chief executive Gabriel Lengoiboni.

The group claimed on Wednesday that Mr Lengoiboni is disabled, having had one of his eyes removed.

They told High Court Judge Esther Maina in Kisumu that the TSC boss should, therefore, have retired at 65 and not 60.

They argue that the TSC had infringed on Mr Lengoiboni’s rights as an individual and the fair treatment of the disabled.

The lobby also wants the court to stop the appointment of a new chief executive.

AFFIRMATIVE ACTION

The government in September 2012 extended the retirement age for the disabled to 65 as an affirmative action.

The Flamengo Community Based Rehabilitation for Disabled Self Help Group argues that Mr Lengoboni’s right to economic and social rights had been violated.

They also argue that Mr Lengoiboni’ right against discrimination had been infringed by his replacement.

The case was filed in May just after the advertisement for the post appeared in local dailies but was thrown out by the Employment and Labour Relations Court over what it said was its lack of jurisdiction.

Mrs Nancy Macharia has since been appointed as the new chief executive officer.

Ms Macharia, who had served as the director of teacher management at the commission secretariat, is expected to take office on Wednesday upon the expiry of Mr Lengoiboni’s term.

Through lawyer Kenneth Amondi, the group argued that by accepting Mr Lengoiboni’s retirement before the required age for the disabled at 65, the TSC had denied him a chance to serve.

MINORITY GROUP

“The effect of retiring Mr Lengoiboni is to deny the petitioner to be represented by a public official from a minority group and who was going to facilitate the running of the commission with his 10 years’ experience,” the group says in its suit papers.

To support its argument, the group has presented a letter from an optician showing that Mr Lengoiboni had lost one eye.

They also contend that Mr Lengoiboni is disabled because he had lost a kidney.

The lobby wants the court to declare the process of appointing a new CEO null and void, arguing that the commission had denied Mr Lengoiboni, as a disabled person, the right to apply and be nominated.

But the commission, through lawyer Allan Sitima, argued that the question as to whether Mr Lengoiboni is disabled is still disputed and therefore could not be used to nullify the process of appointing a new chief executive

“Like any fundamental right, disability must not only be indicated but it must only be fully demonstrated. In this, your honour, Mr Lengoiboni’s has not been demonstrated to you,” Mr Sitima told the court.

According to the commission, for Mr Lengoiboni to be declared disabled and to be accorded the rights enjoyed by that group, he must get a certificate from the National Council for Persons with Disabilities.

Mr Sitima also argued that the lack of a Kenya Revenue Authority tax exemption certificate — usually given to disabled people — showed that Mr Lengoiboni was not disabled.

“The commission followed the law in the shortlisting, interviewing and the subsequent appointment of Ms Macharia. There was not at any instance a breach of the TSC Act in the process,” argued Mr Sitima.

The court will rule on the case on July 6.