Between the PSC and the President, who calls the shots in the Magoha affair?

Education CS George Magoha while inspecting issuance of desks at Ayany Primary School in Nairobi. The desks are supplied to help in social distancing to prevent the spread of the Covid-19 in schools. [File, Standard]

A turf war has erupted between Education Cabinet Prof George Magoha and the Public Service Commission (PSC) after the commission withdrew human resource responsibilities from Prof Mahoha on November 13.

Prof Magoha found himself at the centre of criticism after berating Uasin Gishu County Education Director Gitonga Mbaka during a stakeholders meeting.

Prof Magoha had visited Langas Primary School only to find the facility in a filthy state after which he turned his anger on Mr Mbaka calling him foolish while blaming him for the sorry state of the school.

The CS, known for his rough edges and perfection, had gone silent as the criticism mounted. But the PSC struck, stripping him off powers to hire and fire. The commission said the move was in the exercise of its “powers and commitment to protecting public servants against undignified and unwarranted attacks.’’

It added: “The purpose of this general letter is to inform you that in view of the recent incident in the Ministry of Education relating to the role of the Authorized Officer, the Commission has in the meantime withdrawn the delegation of its powers and functions from the Cabinet Secretary, Prof. George A. O. Magoha, CBS and delegated the said powers to the Principal Secretary for Early Learning and Basic Education, Dr. Richard Belio Kipsang, CBS with immediate effect,” the circular read from PSC Chairman Stephen Kirogo.

On Saturday, Prof Magoha shot back with an 18-page document. While heaping praises on his track record, Magoha told the PSC off for “overstepping its mandate.” He said the commission was not his appointing authority and therefore held no mandate to limit his powers.

“Unless otherwise directed by my appointing authority, I shall continue to perform all my duties and responsibilities with zeal and commitment and ensure that all officers in the Ministry of Education perform their duties for the benefit of the Kenyan child, parents and all education stakeholders,” he said.

The tussle threatens a stalemate at the ministry and leads to the question on who should wield the axe when it comes to human resource matters at the ministry.

PSC action in law

Mr Kirogo said the PSC’s directive was in conformity with its mandate to protect the dignity of the public servants, thereby restoring public confidence in the workforce.

According to Article 232 of the Constitution, the PSC  is tasked with upholding national values in the workforce.

It says the PSC shall “(b) exercise disciplinary control over and remove persons holding or acting in those offices; (c) promote the values and principles referred to in Articles 10 and 232 throughout the public service; (d) investigate, monitor and evaluate the organisation, administration and personnel practices of the public service…”

Who sacks CS?

While the law appears to protect the CS Magoha from sacking by the PSC; it allows the commission to make a recommendation on his behaviour should issue pertaining to code of conduct arise.

This is enshrined in Article 234 of the Constitution.  It empowers PSC to review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service.”

On the grounds of dismissal, Article 152 (6a, b and C) state: “[the CS can be dismissed] on the grounds of a gross violation of a provision of this Constitution or of any other law; where there are serious reasons for believing that the Cabinet Secretary has committed a crime under national or international law; or for gross misconduct.”

What next?

According to Human resource expert Nicholas Siwatom the mandates of cabinet secretaries are firmly guarded under the law.

He told Standard Digital that the move by the PSC may end up being inconsequential on grounds that Prof Magoha is an appointee of the President and any alteration of his mandate can only be achieved through an Executive Order from the Office of the President.

“I do not see the instructions of the Public Service Commission being followed in my view,” he said. “The CS has full control of the ministry—whether human or financial. The PS is like a departmental head. Such would only happen if the CS himself delegated it to the PS,” he further said.