PSC has no powers to determine salaries for parastatal staff, says AG

"The recommendations under section 58(2) may include the establishment or amalgamation of any public bodies including state departments, addition to or subtraction from a department or division, directorate, unit, section or other organizational arrangement; naming or renaming of any public body, department or division, directorate, unit, section or other organizational arrangement or abolition of any public body, department or division, directorate, unit, section or other organizational arrangement," said Muturi.

He added: "Under section 58 of the Act, the mandate of PSC concerning the establishment and dissolution of state corporations is limited to making recommendations after investigation, monitoring, and evaluation of the organization of any public body within the public service."

Muturi also said the role of the State Corporations Advisory Committee (SCAC) is purely advisory and does not in any way conflict with the mandate of the PSC to establish and abolish offices in the public service.

State corporation

"Section 5(3) of the State Corporations Act provides for the power of a state corporation to employ the chief executive officer and other staff and to determine their terms and conditions of service," said the AG.

"Under the provision, a state corporation may engage and employ such a number of staff, including the chief executive on such terms and conditions of service as the Cabinet Secretary may, in consultation with the Committee, approve. The approval of the terms and conditions is by the Cabinet Secretary in consultation with the Committee. SCAC should only play an advisory role."

He said SRC is the entity vested with the constitutional mandate to advise state corporations on remuneration and benefits of employees.

"The nature of advice issued by SRC about public bodies was adjudged by the Supreme Court, which held that no valid salary, and or benefit of a state or public officer, shall ensue from a process that ignores the role of SRC," said Muturi.

Purposes of consistency

He added: "Where a lacuna exists within these laws, we encourage state corporations to liaise with the PSC for purposes of consistency and harmony to promote the fulfilment of the values and principles of public service enshrined in Article 232 of the Constitution."

Muturi, however, emphasized that PSC needs to appreciate that its power to establish and abolish offices in the public service is "subject to the constitution and legislation", meaning the power can be taken away by legislation, such as the State Corporations Act, and Office of the Attorney General Act in some instances.