Hundreds of people appointed as chairpersons and members of boards of State corporations between March and July 2016 were in office illegally, the High Court said on Friday.
Justices Jessie Lesiit, Chacha Mwita and Lucy Njuguna said the appointments were unconstitutional because they were not competitive.
The court, however, declined to shift the mandate of appointing board members of the corporations from the President and Cabinet Secretaries to the Public Service Commission (PSC), as had been argued by Katiba Institute and Africa Centre for Open Governance (Africog) who were the petitioners.
The judges said parastatals do not fall under public service.
Even then, the court ruled that the values and principles of public service, which include competition and merit in appointments, apply to parastatals.
The appointments in question were made on March 11, 2016, June 10, 2016, June 24, 2016 and July 1, 2016.
Among those whose appointments fall under the judgment is Jubilee Secretary-General Raphael Tuju who was made Lake Basin Development Authority chairman, former Youth Enterprise Development Fund chairman Ronald Osumba, former chairman of Kenya Airports Authority and retired Chief of Defence Forces Julius Karangi and former Bumula MP Wakoli Bifwoli who was made the chairman of Agricultural Development Corporation Board.
Others were appointments of former Commissioner of Police Mathew Iteere to chair the Nyayo Tea Zones Development Corporation Board, businessman Chris Kirubi to chair the board of the defunct Brand Kenya, current Nyandarua Governor Francis Kimemia who was made chairman of the Industrial and Commercial Development Corporation , KCB Bank chief executive Joshua Oigara to chair the board of the Energy Regulatory Commission (now the Energy and Petroleum Regulatory Authority), athlete Paul Tergat to the board of Kenya Academy of Sports Council, former Cabinet Minister Henry Kosgey to chair the Tourism Fund Board, and tens of other appointments.
Almost all the appointments under question have elapsed and the appointees moved on to take up other positions while some have retired.
However, the impact of the ruling will be felt in the future as vacancies in the boards of State corporations will be advertised and applications invited from ordinary Kenyans, interviews held in public.
Only then will the President and Cabinet Secretaries make appointments from the shortlist of finalists.
The High Court said such appointments must be fair, transparent and competitive, subject to affirmative action, even as the President and Cabinet secretaries remain the hiring authorities.
“The people told the Constitution of Kenya Review Commission that they want merit-based appointments and promotions to public offices,” the judges said.
This is a major departure from the past where board appointments have been used to reward political loyalists and financiers of the winning party as well as losing political candidates.
“The court has declared that any law allowing an appointment to a parastatal must be read as requiring fairness, transparency and competition. The judgment ends the culture of nepotism, cronyism or ‘jobs-for-the-boys,” Mr Dudley Ochiel – the lawyer for Katiba Institute and Africog – said.
“The timing is significant because inclusivity is one of the nine pillars in the Building Bridges Initiative, which the court has resolved and can be removed from the constitutional amendment agenda.”
The petitioned had been opposed by Head of Public Service Joseph Kinyua who swore an affidavit to that effect.
The Public Service Commission also opposed the case on grounds that the law exempts it from making appointments to the boards.
It added that every State corporation has its constitutive Act that spells out the mode of hiring.
The three judges said it does not matter if the constitutive Act of every parastatal has its own way of recruiting.
“Regarding the post-2010 statues, we wish to state that even though the statutes may not expressly state that appointments be made in an open, transparent and based on fair competition and merit, institutions and authorised officers responsible… have no excuse for not complying with the Constitution,” the court said.
It added that Parliament enacted the Public Service (Values and Principles) Act in 2015, which demands that appointments be fair, transparent and competitive.