Governors have no powers to take disciplinary action against CECs

CEC position is protected from adverse action. [iStockphoto]

Governors have no powers to investigate or take disciplinary action against County Executive Committee (CEC) members, the court has ruled.

The court said Section 40 of the County Governments Act does not contemplate a governor suspending or sending on compulsory leave a CEC.

Like other public officers, a CEC is also protected from adverse action by the due process outlined in Article 236 of the Constitution.

Employment and Labor Relations Court Judge Stephen Radido said the removal of a CEC from office demands that complaints or allegations are channelled or find their way before the county assembly for investigations.

The process involves the county assembly voting on a removal motion and setting up a Select Committee of the County Assembly to investigate any allegations of incompetence, abuse of office, gross misconduct, gross violation of the Constitution or any other written law, physical or mental incapacity or failure to attend meetings of the County Executive.

This came up in a case filed by Dr Alfred Ndemo Ong'era, who was appointed on November 15, 2022, as the CEC for Trade, Tourism, Industry, and Marketing by Kisii Governor Simba Arati.

On December 1, 2023, the governor wrote to the petitioner, directing him to proceed on compulsory leave to facilitate investigations into allegations of gross misconduct, abuse of office, gross violation of the Constitution, and other written laws.

Arati cited sections 39 and 76(6) of the County Governments Act while issuing the directive to the CEC. On December 28, 2023, the Governor extended the compulsory leave by six weeks.

Ong'era wrote to the governor on January 2, 2024, seeking particulars of the alleged violations and abuse of office. The petitioner indicated in the letter that if there was no response within seven days, he would move to court.

Arati did not respond, and the CEC moved to court to challenge the decision on February 6, 2024.

The petitioner contended that compulsory leave was not provided for under the employment law of general application in Kenya, it was not lawful, and that by dint of Article 47 of the Constitution, which guarantees the right to fair administration, he should have been given reasons for the decision.

In his ruling, the Judge said: “The governor does not have the instruments to conduct an investigation. Indeed, the governor in the present case did not disclose the instrumentalities he was using, to carry out the purported investigations. The office of a governor is not suited to conduct investigations, whether disciplinary or otherwise.”

Justice Radido ruled that the governor did not possess any lawful authority to send the petitioner on compulsory leave or conduct investigations into the allegations under the provisions he cited or any other law.

“It is not possible for an employer to carry out investigations against an employee, who despite accusations of wrongdoing, continues to occupy his/her office,” he said

In his May 8, 2024 ruling, Justice Radido ordered the governor and the County Public Service Board to reinstate Ong'era to his position.