NON COMPLIANT WITH LAW

Staff promotions by Elachi were illegal — assembly report

Investigative agencies called upon to probe Public Service and Gender CAS who was the board chair

In Summary

•The committee held six sittings during which it received documentary evidence, interrogated witnesses and took oral evidence.

•The team revealed that all the witnesses appeared except Elachi and Hamza MCA Mark Ndung’u who then served as a board member. 

Nairobi MCAs in the assembly chamber.
Nairobi MCAs in the assembly chamber.
Image: EZEKIEL AMING'A

Promotions and recruitment of staff at the Nairobi County Assembly last year were illegal.

A report adopted by the county assembly on Tuesday revealed that the review of the organizational structure, promotion of staff and recruitment done within the same period did not comply with the law.

“Recruitments made contrary to Section 37 of the Public Service Commission Act, 2017, and Human Resources Manual of the Public Service under Section B.4(1) and Section B.8.2 of the county assembly HR Policies and Procedure Manual are irregular, illegal and void,” the report said.

The report calls upon investigative agencies to probe Public Service and Gender CAS Beatrice Elachi for violation of the law and abuse of office by usurping the county assembly service board powers where she served as chairperson.

“The former chairperson Beatrice Elachi should be investigated by  EACC, DCI and surcharged for any calculable loss of public funds arising from the impugned acts under Article 226 of the constitution,” the report reads.

However, before the house debated on the report, nominated MCA  Mary Arivitsa alleged there was a court order stopping the committee from undertaking any investigations on staff queries.

“The matter is before the court and as an assembly, we should respect the law and not discuss the matter,” she said.

Nairobi Nominated MCA Mary Arivitsa speaking during a plenary session at the Nairobi County Assembly chambers on October 2.
Nairobi Nominated MCA Mary Arivitsa speaking during a plenary session at the Nairobi County Assembly chambers on October 2.
Image: MAUREEN KINYANJUI
Speaker of the County Assembly of Nairobi Benson Mutura presiding over plenary session on October 26, 2021 at the chambers
Speaker of the County Assembly of Nairobi Benson Mutura presiding over plenary session on October 26, 2021 at the chambers
Image: MAUREEN KINYANJUI

However assembly speaker Benson Mutura  said the inquiry was a committee issue and being a parliamentary session, the assembly was at liberty to debate on issues brought before the house

“If there is any reservation, the court is at liberty to make a ruling and direct if the committee deliberations are in contradiction of the constitution. But you cannot gag the committee from doing its work,” he said.

The Justice and Legal Affairs Committee chaired by Joseph Komu was looking into an inquiry arising from a request from a statement on alleged unfairness, discrimination and irregularities in the administration of staff at the county assembly.

The committee held six sittings during which it received documentary evidence, interrogated witnesses and took oral evidence.

The team revealed that all the witnesses appeared except Elachi and Hamza MCA Mark Ndung’u who then served as a board member. 

When reached for comment, Elachi said she did not initiate the promotion process but was carrying out what her predecessor the late Alex Magelo had started.

She however found it strange that the assembly recommended that some staff be removed from their positions and retained the others.

“If the promotions were done illegally why did the assembly selectively choose to spare some staff who had been promoted by the same process?” she questioned.

The former speaker said before the promotion started, she had written a letter to the DCI and EACC inviting them to be part of the process.

“I wrote to the investigative bodies because I knew the promotions would bring a lot of political interference and will be questionable,” Elachi added. 

She said the whole process by the assembly was witch- hunt and they will soon meet in court.

The committee said the then service board engaged in blatant acts of abuse of office, illegality, irregularity, nepotism and outright bias in the advertisement of vacancies and the carrying out of the impugned organizational review and promotions in haste.

There was potential loss of public funds, where contractual employees without valid contracts continued to earn salaries.

“The committee observed that witnesses from the board, former and serving, agreed that there were illegalities and irregularities apparent regarding the organizational review exercise that led to the promotions,” the report read.

The  promotions were also done without the requisite budgetary provisions, the result of which was a heavy strain on the existing budget and the total shut down of critical services to the assembly

“It was noted that the board irregularly created the position of deputy clerk administration, contrary to Section 21 of the County Assembly Services Act, 2017,” the report reads.

MCAs who supported the report expressed their concerns about the dirt that had been in the assembly.

Highrise MCA Kennedy Oyugi said the illegal promotions done hindered all nominated MCAs from getting three support staff attached to them as required.

“I thought the probe by the committee was out of malice but the revelations are quite shocking, Oyugi said.

He questioned why the former board was in a hurry to conduct promotions and there was no budget allocation.

“The report is shocking and it reveals that everything was done following a decision by one person and not the board. This is an abuse of power,” Majority leader Abdi Hassan said.

“Some MCAs then were blocked from accessing the assembly. I was a victim,” Eastleigh North MCA Osman Adow said.

STAFF SPARED

After completing the investigation the committee recommended that all the officers affected by the annulment of the illegally created and filled positions should not be surcharged for the salaries, benefits and allowances paid to date.

All the promotions made in the common cadre category be retained since they were done legally. 

 “The service board do immediately note the resolution of the House and implement the recommendations of the committee immediately,” the report read.

The service board has also been compelled to address the budget deficit as necessary to restore the CRA conferred benefit to all members of the county assembly.

“All the recommendations by the committee shall be deemed to have taken effect at the lapse of seven days, and the board secretary to take appropriate actions to implement the same,” the report reads.

The Committee on Justice and Legal Affairs is expected to report back to the house on the implementation of these resolutions within 14 days of the adoption of this report and recommend any sanctions for non-compliance.

The clerk of the county assembly has also been tasked to forward the report to the Auditor General, EACC and DCI within seven days for appropriate actions.

Edited by Kiilu Damaris