President contravened law on public’s participation when he appointed officials

President Uhuru Kenyatta delivers a speech during the opening day of the World Climate Change Conference 2015 (COP21), on November 30, 2015 at Le Bourget, on the outskirts of the French capital Paris. AFP PHOTO | ALAIN JOCARD

What you need to know:

  • Principles of leadership and integrity outlined in Article 73 of the Constitution must be adhered to in public officers selection.
  • When the Jubilee government took office in 2013, the Public Service Commission advertised the positions of PS in the local dailies.

In response to runaway corruption and a public outcry culminating in the resignation of former Devolution Cabinet secretary Anne Waiguru, President Uhuru Kenyatta reshuffled his Cabinet, sent away those implicated in graft, and added the number of principal secretaries from 29 to 40.

However, the legal regime under which these appointments were done seems not to meet the requirements of the new Constitution.

The irony is that during his speech, the President cited the need to put the government in line with the new constitutional framework, seeing that he is the first Head of State vested with the unique duty to steward Kenya into full implementation of the law.

Article 10 of the Constitution provides that national values and principles of governance include good governance, integrity, transparency, accountability, and public participation.

In a nutshell, any recruitment, appointment, or selection of State or public officers has to be in line with these principles and values.

POLITICAL PATRONAGE

Article 73 further outlines the guiding principles of leadership and integrity to include selection on the basis of personal integrity, competence, and suitability or election in a free and fair process.

The provisions are meant to safeguard against political patronage. Unfortunately, the recent appointments did not follow any framework that would ensure that picking of the new PSs is on the basis of a competitive process, personal integrity, competence, and suitability.

When the Jubilee government took office in 2013, the Public Service Commission advertised the positions of PS in the local dailies.

It conducted interviews and sent the names of those it deemed suitable to the President for nomination.

Due to that process, Kenyans knew who applied, who was shortlisted, and who was appointed.

FAIR COMPETITION AND MERIT A CONSTITUTIONAL RIGHT

In fact, Article 232, which the PSC is constitutionally mandated to safeguard, sets out the values and principles of the public service, which include fair competition and merit as the basis of appointments and promotions.

Furthermore, the Constitution is specific under Article 232(2) that the values and principles of public service apply to all State organs at both levels of government and requires Parliament to enact legislation to give full effect to the article. This has yet to be done.

Moreover, Article 232 (1) g, h, and i provides that the values and principles of public service include representation of Kenya’s diverse communities and affording adequate and equal opportunities for appointment, training, and advancement at all levels of the public service.

To masquerade as fighting corruption even as we violate the Constitution is an oxymoron.

It is vital that we safeguard the Constitution because to bastardise its requirements in the guise of fighting graft is in itself engaging in a form of corruption and sets a bad precedent that bogs down Kenyans’ aspirations for a free, fair, and transparent society run by the rule of law.

SUPREMACY OF THE CONSTITUTION

In declaring the supremacy of the Constitution, Article 2(4) categorically provides that any inconsistency with the Constitution is void and that any act or omission in contravention of the Constitution is thus invalid.

The rationale for a transparent and competitive processes was to ensure that public officers are beholden only to the people of Kenya and the Constitution, and not personalities, parties, and political expediency.

In fact, it can be argued that the failure to depoliticise certain professional positions is what has led to the alarming levels of impunity.

The current situation reeks of political horse-trading that pays undue consideration to party loyalty rather than professionalism and service delivery.

The next six months will be a crucial time for Kenya because it will determine whether or not we have finally reached the watershed moment where those caught with their hands in the honeypot will be taken to court.

It is the duty of the President, the Office of the Director of Public Prosecutions, and the Ethics and Anti-Corruption Commission to ensure that corruption becomes a most unfashionable and risky affair.

Without prosecutions, convictions, and seizure of the proceeds of corruption, there is little incentive for real change and accountability.

Mr Kiprono is an advocate of the High Court and a senior programmes officer at Article 19 Eastern Africa.