Judge clips SRC's push to hire, pay staff in varsities and State firms

The High Court has clipped the Salaries and Remuneration Commission’s (SRC) nails on hiring and salary recommendations for public universities and State corporations’ employees.

High Court Judge Lawrence Mugambi, in his judgment on Friday, said that SRC has no powers to directly write to universities and corporations, directing them on hiring and remuneration.

SRC claimed that its advisories are binding and can be applied to parastatals and universities directly, bypassing the Public Service Commission (PSC).

However, the judge said that it would create anarchy for SRC to bypass PSC, as it would amount to a duplication of the former’s role and disrupt the structure created by law.

He said it would create confusion in governance, adding that such advice would be unlawful and of no legal effect.

“If this would not create anarchy in remuneration, I do not know what it is. I do not have a problem with SRC consulting widely on a matter that is legally bound, but formally, SRC cannot advise anyone. In my view, it is not permissible for SRC to bypass PSC on a matter touching on terms and conditions in the public service, since it is PSC that is constitutionally mandated to perform that function,” said Mugambi.

In this case, SRC and PSC were fighting over who had oversight on recruitment and determining the salaries of civil servants and university employees.

Former Permanent Secretary for Governance and Ethics, John Githongo, and the Katiba Institute argued that an advisory by the Attorney General contradicted a court finding that the SRC and State Corporations Advisory Committee (SCAC) lack direct authority over parastatals and public universities.

Justice Mugambi heard the AG’s advisory dated July 27, 2023, followed by a letter by SCAC on August 8, which could cause confusion on who is in charge of the workforce.

"The letters issued by the respondents (AG and SCAC) shall almost certainly cause confusion, anxiety, and disruption within State corporations and public universities; undermine and erode the authority and purpose of the PSC under Article 234 of the Constitution to facilitate a properly functioning public service imbued with the national values,” Mr Githongo and Katiba’s lawyers argued.

Githongo was represented by Isaac Akelo, while Suyinka Lempaa represented the Katiba Institute.

They asserted that the PSC has the power to establish and abolish offices within the public service, including those in public universities and government agencies.

Githongo and Katiba argued that the SRC can advise the PSC but cannot directly instruct public universities and parastatals. In addition, they said SCAC’s role is limited to advice and cannot issue human resource guidelines.

They claimed the AG’s advisory is flawed and that he has "undermined the rule of law and eroded the public interest by issuing an advisory based on statutory provisions that have been declared unconstitutional or in conflict with the Constitution."

In the letters at the heart of the case, the PSC told off the AG over his advisory, insisting that the government legal advisor has no say in hiring civil servants in parastatals, determining their salaries and employment terms, or the abolition of corporations.

PSC Chief Executive Simon Kiprotich instructed vice-chancellors and parastatal heads to implement new human resource management instruments for creating or abolishing offices. He warned that any action without PSC approval would be null and void, hence implying that universities and parastatals can disregard the AG.

However, Justice Mugambi said that the AG, being the government's legal advisor, has a say to all government institutions unless his advice is overturned by a court.

Regarding State corporations, the AG said: "Under Article 234 of the Constitution, the PSC does not have powers to establish and abolish offices in the public service, appoint persons to hold or act in those offices, or confirm appointments and exercise disciplinary control over and remove persons holding, or acting in those offices.”

But the PSC, in a 14-page reply, accused the AG’s office of failing to refer to two judgments – Manyara Muchui Anthony vs Communication Authority and three others, and Consumer Federation of Kenya vs National Social Security Fund Board of Trustees and two others.

The AG, however, said the PSC can recommend to Cabinet Secretaries a review of working terms and code of conduct, but not directly influence parastatals. The AG was responding to Prime Cabinet Secretary Musalia Mudavadi, who sought clarity on PSC's constitutional powers over human resources in State corporations.