We’ve to walk a tightrope on appointment of boards of directors

One of the subsystems used in public service to deliver services to the citizenry is State-owned enterprises. Some are established under the State Corporations Act, Cap 446, while others have their individual enabling legislation upon set-up.

POLICY MAKING

For effective management of corporations, the Executive appoints boards of directors and their chairpersons to provide oversight. The boards are constituted to ensure the interest of the appointing authority and, by extension, the public interest is served. Effective boards are the lifeline of the bodies.

There are more than 200 state corporations in strategic national sectors, including security, finance, energy, education, health and transport. May they be regulatory, service or commercial entities, different criteria in appointing boards are applied. Yet the traditional method has often been individual identification.

But the 2010 Constitution introduced changes. The criteria in Article 232, on the Principles and Values of Public Service, includes competitive and merit-based appointments; representation of Kenya’s diverse communities; and inclusion of men and women, ethnic groups and persons with disabilities.

Subsequently, concerns have been raised on appointments made using the traditional methods, to a point of being challenged in court. Some say they favour those with an ear to the appointing authorities.

In the spirit of public participation in policymaking, we need to hold a discourse and build consensus on an approach that will be deemed satisfactory to all.

There are two divergent schools of thought on the approaches. First is where the appointing authority identifies the persons. Its proponents believe that the government of the day should appoint people it has confidence in to bring its manifesto to life. This is based on the principle that state corporations are government programmes used to implement policies.

This is underscored by the inclusion of representatives from the parent ministry, and other relevant agencies to the boards. They ensure policies are executed and integrity and transparency concerns addressed.

LOOPHOLES

They argue that boards are guided by policy and operation manuals. Some have enabling legal instruments, including Acts of Parliament, to guide their operations. Further, the government has other oversight instruments and regulatory controls.

The criticism levelled at this method has been on the potential loopholes it leaves for abuse by appointing authorities. That every corporation has a unique method, many silent on qualifications, has left an open window for inept appointments that lead to poor governance and poor performance. Where boards enjoy camaraderie relations with the appointing authority, abuse of resources is common and legal instruments may be ignored.

The other school of thought roots for professionalised appointment, contending that the Executive primarily should rely on public servants who operate on a paradigm of expertise and technical knowledge.

Article 232 of the Constitution underscored this principle, which also informed the Executive approach of appointing technocrats as Cabinet secretaries and principal secretaries through merit-based interviews.

Its proponents envisage a situation where appointing authorities have a repository of CVs of qualified citizens from where they could pick preferred candidates. They would then apply extra constitutional criteria such as inclusivity in gender, youth and regional balance.

EXPEDIENCY

But the interview method has been criticised for attracting candidates driven by the need of jobs rather than to make a worthy contribution in a given field. It is said not to have attracted the much-needed expertise and talent and seen as an illusion that ignores the realities of our socio-political system.

Consequently, it should not be surprising that appointments have tended to follow a mix of both the traditional headhunting identification approach, as well as the professional approach — as in the private sector. This blended approach has, probably inadvertently, answered to both the professional and political expediency considerations. But getting the right mix has proved a challenge and a source of much public exasperation.

However, an overarching consideration is to ensure that the appointing system is not open to abuse by appointing authorities and will attract tried and tested professionals and meet constitutional requirements.

Building consensus on the way forward will be walking a tight rope but it is a walk that we have to take.

Prof Kobia is the Cabinet Secretary, Ministry of Public Service, Youth and Gender Affairs. [email protected]