Employment and Labour Relations,  court has barred parastatals and other state agencies from encroaching on the mandate of the Public Service Commission (PSC) on human resource matters.

The court also faulted State Corporations Advisory Committee (SCAC) for attempting to usurp the role and mandate of PSC. Justice Monica Mbaru made the finding in a case in which the Communications Authority of Kenya (CA) and the State Corporations Advisory Committee (SCAC) were sued for hiring two directors in charge of Frequency Spectrum Management and Competition Management.

A citizen, Antony Manyara Muchui went to court in October last year protesting the recruitment process based on structures and establishment that had not been approved by the PSC, the institution with the constitutional mandate, under Article 234 of the constitution to establish offices in the public service and approve organisation structures and human resource policies and guidelines.

In her judgment, Justice Mbaru said state corporations are part of the public service and undertake public functions using public resources. 

She further reiterated that the PSC is mandated to regulate all human resource of the state corporations. “I find that it is within the mandate of PSC to manage human resource matters in the public service and that includes state corporations,” ruled Mbaru.

The Judge, however, directed PSC to review, audit and make recommendations with regard to the Communications Authority human resource policies and practices of its officers or employees and report to the court within one year. PSC was also ordered to investigate the agency’s administration and personnel practices, and report back to the court.

Mbaru said the report compiled by PSC should state measures undertaken to harmonise the law to meet the constitutional threshold pursuant to Article 234.

“The third respondent (PSC) is hereby directed to develop Human Resource Policies and guidelines for the 1st respondent (CA) in strict compliance with the Constitution and the law,” the Judge said.

The court directed the Commission and the Attorney General to ensure the enactment of  necessary amendments to legislation to align them with the provisions of Article 234 of the Constitution to prevent a situation where agencies continue to exercise statutory powers that existed prior to the promulgation of the new Constitution. 

Manyara had sued CA for changing the recruitment process by introducing possession of a Master’s degree as a condition for promotion.

Mbaru however allowed CA to restrict the recruitment of the two senior officials at the state agency to master’s degree holders arguing that they are technical positions requiring a higher level of competence.

The recruitment process of filling the two positions which had been advertised was temporarily halted last year after it was challenged in court on grounds that it was discriminatory and meant to lock out deserving Kenyans.

But the CA CEO Ezra Chiloba had opposed the petition arguing that the two positions were technical and will also form a pool from which a successor to the director general position would be sourced.

The judge has now directed CA to re-issue the internal and other public advertisements for filling of vacant positions within 14 days without disadvantage to those who had already applied and those likely to apply in the extended period.“To ensure completeness and taking into account the date the advertisements were closing the same was stopped by the court for good cause and to allow for the hearing of the petition, the first  respondent shall post and publicise a new date for receipt of all applications. This will give interested and eligible applicants a reasonable opportunity to put in their applications,” the Judge said.

Manyara filed the case arguing that the move is illegal and is meant to lock out deserving members of staff from being promoted, and also prevent qualified members of the public from applying for the jobs.

He said the advertisements were issued using new human resource policies and guidelines, prepared by the State Corporations Advisory Committee (SCAC), which requires all serving and prospective employees from the position of assistant manager and above to have a minimum academic qualification of a master’s degree. Source: People Daily