Why is President not filling key positions?

Questions are being raised over the government’s apparent dragging of its feet in filling key positions in constitutional bodies.

President Uhuru Kenyatta is yet to nominate a person to replace Prof Christine Mango at the Judicial Service Commission (JSC), which is the administrative wing of the Judiciary, a year since her term expired.

A similar situation prevails at the National Police Service Commission (NPSC) which, as currently constituted, lacks the necessary quorum to undertake its mandate as set out in Article 246 (3) of the constitution.

The same delay in naming replacements was witnessed at the National Cohesion and Integration Commission (NCIC). The commission only got its commissioners in September, more than a year after the Dr Mzalendo Kibunjia team left.

Former National Assembly Speaker Francis ole Kaparo is now the chairman of NCIC.

LEGAL CHALLENGES

Appointment of the chair of the Teachers’ Service Commission was not any quicker as the decision was kept pending since the new body was formed. President Kenyatta recently appointed Dr Lydia Nzomo to chair the TSC.

Mr Nzamba Kitonga, who chaired the Committee of Experts (CoE) that drafted the 2010 constitution, said the prevailing situation could also expose the commissions to legal challenges.

For instance, he said, the court can declare any decisions NPSC may have made without the proper quorum null and void since it was not properly constituted.

At JSC, Mr Kitonga said the segment of Kenyans Prof Mango represented may also feel aggrieved and institute legal challenges. She represented special groups and public interest in the commission.

Mr Kitonga added: “It is critical these positions are promptly filled. Whoever has the mandate to fill them should do so because there are legal consequences.”

LSK secretary-general Apollo Mboya said: “The position that has not been filled at the JSC denies the segment Prof Mango was representing the opportunity to be heard. In my view, we should ask the appointing authority why this has not happened.”

“It is very wrong because it impacts on the critical functions of the commission,” he added.

LACKING A QUORUM
The NPSC has been lacking a quorum for over a year since vice-chairperson Esther Chui Colombin died in November 2013. Another commissioner, Mr Shadrack Muiu, has been unable to take up his place at the commission for more than a year due to ill-health.

In the absence of Mr Muiu and Ms Colombin, the commission is left with only four fulltime commissioners, namely Johnstone Kavuludi, Ronald Musengi, Mary Owuor and Murshid Mohamed.

Through Article 246 (3), the commission is mandated to recruit and fill positions in the police service and in addition determine promotions and transfers. NPSC is also mandated to discipline members of the police service.

As presently constituted, NPSC cannot, therefore, legally hold a sitting to appoint an acting Inspector-General of Police.

President Kenyatta is required by Section 6 of the NPSC Act 2011 to constitute a selection panel to fill the positions within 14 days of a vacancy arising.

Mr Kavuludi has on a number of occasions approached State House to initiate the process of filling the positions of Ms Colombin and Mr Muiu.

On January 17, Mr Kavuludi wrote to the Head of Public Service Joseph Kinyua asking him to initiate the process of filling the positions because “the issue of quorum has become a matter of serious concern, especially at this time when the commission is undertaking serious police reforms including the on-going vetting process.”

CAREFUL CONSIDERATION

In a follow-up letter on February 12, Mr Kavuludi again raised the outstanding issue affecting the commission including the appointment of commissioners.

According to Siaya Senator James Orengo, the reason some vacancies in the constitutional bodies have not been filled for long could be negligence or failure to abide by the constitution.

Mr Orengo said the appointing authority could be buying time until it is politically profitable.

“These commissions are very important organs in the constitution. It is thus important that the commissioners are appointed promptly to make the commissions function competitively,” Mr Orengo said.
Gatundu South MP Moses Kuria, while acknowledging the importance to fill the positions, however said the reason the President or other relevant appointing authority has not acted could be because “these positions need careful consideration”.

“You will notice that even some state corporations have vacancies. It is neither oversight nor negligence. But it is because the positions require special considerations to meet regional, gender and special interests,” said Mr Kuria.