Activist Omtatah's new case may have bearing on Njiraini contract

KRA Commissioner General John Njiraini(L) addresses a press conference at Times Tower, Nairobi on Tuesday 19/07/16 over car registration.PHOTO:BONIFACE OKENDO

Kenya Revenue Authority (KRA) Commissioner General John Njiraini’s fate may be determined by a second suit filed on Friday by activist Okiya Omtatah.

Mr Njiraini, whose second and final term expired on March 3, 2018 and while he attained the mandatory retirement age of 60 on December 19, 2017, is yet to hang his boots.

The taxman is still in office with reports that KRA board gave him a one-year extension. However, that has not been made public following a first case filed by Omtatah. The case, pending before Justice Nelson Abuodha, will be heard on April 6 with the judge expected to issue directions on his continued stay.

However, even as Njiraini and KRA await the determination, Head of Civil Service Joseph Kinyua scrapped age and term limits for Chief Executive Officers of State corporations to allow top civil servants to work beyond the mandatory retirement age of 60.

This move has been interpreted as tailor-made to keep Njiraini in office especially given that Kinyua stopped a KRA board meeting held in December that sought to send him on terminal leave. Omtatah has since filed a second case challenging the legality of the new circular.

DISCRIMINATORY

“Kinyua’s irregular desire to retain CEOs of public bodies in the public service beyond the mandatory retirement age, is anathema to the rule of law, will block the advancement of other deserving Kenyans, and is discriminatory against other public servants who are forced to retire upon attaining 60 years of age,” the activist says in court papers. He said the circular by Kinyua was issued to achieve a collateral purpose.

Under the Code of Governance for State Corporations (Mwongozo) published in January 2015 jointly by the Public Service Commission and the State Corporations Advisory Committee, CEOs of public bodies are only allowed to work for two terms of three years each.

Hence, a CEO may be appointed for a cumulative term not exceeding six years and thus Omtatah argues that Kinyua cannot by a circular or howsoever change those express provisions of subsidiary legislation. Mwongozo provides for the tenure of CEOs to be three year term or as otherwise provided under any other written law and renewable once subject to performance evaluated by the board.

He argues that as from April 1, 2009, the mandatory retirement age of 60 applies to all public officers with the exception of Judges, academic staff in public universities, research scientists, and public servants with disabilities.

The circular states that, for avoidance of doubt, the terms of service for Chief Executive Officers is contractual and renewable based on performance and business requirements. They are not subject to the general Public Service Policy on mandatory retirement at 60 or 65 years or limit as to number of terms served.

“The Circular No. OP. CAB.2/7A of 20th March 2009 on review of mandatory retirement age for public servants is therefore, not applicable to State Corporations’ Chief Executive Officers. You are required to bring the contents of this circular to the Boards of Directors of state corporations under your docket and to ensure they have put in place a robust mechanism for ensuring performance of CEOs and leadership requirements over time,” Kinyua’s circular copied to all cabinet Secretaries, Attorney General and all Principals Secretaries reads in part.

In response to the first case, both KRA and Njiraini denied any plan to extend the commissioner general’s tenure.