Another High Court bombshell for Uhuru

From left: Justices Chacha Mwita, Jessie Lessit and Lucy Njuguna reading a judgment in a petition that was challenging the appointment of 128 State Corporations heads and board members at Milimani law courts in Nairobi, on Thursday, May 27 2021 [David Njaaga,Standard]

A total of 128 senior parastatal chiefs hired by President Uhuru Kenyatta in June 2018 were yesterday sent home by the High Court a few days before expiry of their three-year terms.

In yet another verdict faulting the Head of State for failing to follow the law, Justices Jessie Lesiit, Chacha Mwita and Lucy Njuguna concluded that although the President had powers to do the appointments, the process was flawed as they were not subjected to competitive recruitment.

The litigants, Katiba Institute in the case challenging the appointment, had argued that the recruitment was based on patronage. The ruling, however, comes a few days after a good number of the appointees exhausted their three years terms with a few others leaving next week.

The three judges found that Kenyans in the 2010 Constitution wanted those qualified to be appointed to public offices to be done in a transparent manner where gender equality was to be observed.

This is the second time that the High is faulting the President over making illegal appointments. On April 20, the court held that the law does not have a position of Cabinet Administrative Secretaries (CASs) and found that creation of such positions was illegal.

“Considering the respondent’s argument, it is clear to us that there were no advertisements of vacancies and neither were interested parties subjected to interview before being appointed. Without advertisements and subjecting the interested parties to interviews it cannot be said that the requirement of competition and merit were complied with,” the judges ruled.

“There was no demonstration that the requirement of gender, ethnicity and person with disability were complied with. Without complying with transparency, competition, and merit, the appointments cannot be said to have met the constitutional standards.”

In the case filed by Katiba Institute, the judges said that the appointments are a mockery of the Constitution, adding that Kenyans were aware of the inability of public officers to carry out their mandates without political pressure and those appointments were out of patronage when they changed the law to have officers recruited competitively.

“It is plain that the President and Cabinet Secretaries made the appointments without regard to the Constitution and the statute; a move that also violated national values and principles of governance in Article 10 of the Constitution,” they continued.

Insurance manager

The three-judge-bench quashed appointments saying they are invalid having been no transparency and fair competition. [David Njaaga,Standard]

Some of the appointments that the President made in 2018 include the hiring of Hannah Waitherero Muriithi, a former insurance manager and advocate of the High Court, to the board of the National Hospital Insurance Fund (NHIF) for three years, where she was picked to serve as the chairperson.

Mutea Iringo, a former powerful Interior Principal Secretary who unsuccessfully ran for the Imenti North parliamentary seat in 2017, was appointed the chairperson of the National Cereals and Produce Board (NCPB).

Former chief of staff, retired generals, Joseph Kibwana and Julius Karangi were appointed to chair Kenya Ports Authority and as non-executive chairperson and a trustee of the National Social Security Fund respectively.

Former Machakos County Assembly Speaker, Bernard Muteti Mung’ata, was appointed the chairperson of the Industrial and Commercial Development Corporation (ICDC).

At the same time, President Kenyatta re-appointed James Ndegwa, Ngene Gituku, John Ngumi and Henry Obwocha to chair the boards of the Capital Markets Authority, Communications Authority of Kenya, Kenya Pipeline Corporation and Privatisation Commission, respectively, for another three years.

Former Baringo Governor, Benjamin Cheboi was appointed the non-executive chairperson of the Agricultural Development Corporation Board.

Former Migori MP Charles Owino was appointed the chairperson of the board directors of South Nyanza Sugar Company.

Another ex-MP, Jonathan Lelelit Lati of Samburu West, was appointed the chairperson of the Kenya Industrial Research and Development Institute.

President Mwai Kibaki’s daughter, Judith Wanjiku, was appointed as a board member of the Kenya Investment Authority.

Other notable parastatal appointments included former Kwale Woman Representative Zainab Chidzuga, who was chosen as a member of the board of National Oil Corporation of Kenya.

Augustino Neto, who once served as Ndhiwa MP, was appointed as a board member of the National Environmental Management Authority (Nema).

Mombasa governor aspirant in 2017, Suleiman Shabhal, was picked as the chairperson of the board of the Kenya Trade Network Agency.

Former Kenya National Union of Teachers (Knut) chairman Mudzo Nzili was  appointed as a non-executive chairperson of the National Irrigation Board.

Lilian Mahiri Zaja, who was the former Independent Electoral and Boundaries Commission (IEBC) vice chairperson, was appointed as a commissioner at the Energy Regulatory Commission

At the same time, the court declared paragraph 4(1)(e) of The Kenya Leather Development Council Order, 2011; section 9(1)(a) and (g) of the Forest Conservation and Management Act, 2016; Paragraph 6(1)(g) of The Kenya Water Towers Agency Order, 2012; section 6(2)(a) of Cancer Prevention and Control Act, 2012; section 5(1)(a)and(f) of The Kenya Animal Genetic Resources Centre Order, 2011, section 8(1)(d) of Kenya Plant Health Inspectorate Service Act, 2012 and section 13(1)(g) of Civil Aviation Act, 2013.

These statutes had been applied to waive competitive recruitment during the picking of the public officers. 

Other sections declared to be unconstitutional are 6(1)(h) of National Authority for the Campaign Against Alcohol and Drug Abuse Act, 2012; section 7(1)(a) and (d) of Kenya Deposit Insurance Act, 2012 and section 6(1)(a) and (g) of Kenya Trade Network Agency Order, 2010(LN. 6 2011).