The fresh vetting of heads of accounting and procurement has run into headwinds again after the Employment Labour Relations court declared sections of the circular unlawful on Friday.
Justice Byram Ongaya declared that the mass suspension of the public servants and paying them at the same time was not only unconstitutional but adverse on taxpayers.
The judge said Head of Public Service Joseph Kinyua’s circular was not in the best interest of the affected civil servants for want of due process required in normal employer-employee leave arrangements.
“The Court finds that the circular offended Article 47(1) which provides that every person has the right to administrative action that is expeditious, efficient lawful, reasonable and procedurally fair.”
The order came amid reports that many of the suspended officers in collusion with their superiors were still working behind the scenes from the comfort of their homes, handling duties they are supposed to have relinquished.
On June 1, 2018, President Uhuru Kenyatta announced that all procurement officers would be vetted a fresh. Then followed Kinyua's circular four days later directing heads of accounting units and procurement chain management to hand over to their deputies and proceed on leave for 30 days — which expired last Tuesday. It was not clear whether yesterday whether the employees will resume work or continue staying at home with the expiry of the period.
Yesterday, State House spokesperson Kanze Dena declined to comment when contacted by the Star.
“The head of public service will be issuing further clarifications in the coming days,” said Dena.
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It is the second time the circular was being challenged by activist Okiya Omtatah. The process was temporarily suspended by Justice Onesmus Makau on June 6 but he eventually reinstated it on June 13 and extended the deadline for submitting the documents by 10 days.
Omtatah filed another case challenging the payment of of full benefits to employees when they are idle. Yesterday, Justice Ongaya said imposing compulsory leave with full pay is offensive to the rule of reasonableness.
“The declaration that the circular is illegal and unconstitutional only to the extent that by designing and prescribing imposition of a compulsory leave with full pay, the circular thereby contravened articles 47 (1), 41 (1) 129 (2) and 232 (1) b of the constitution, only to that extent it is hereby rendered null and void.”
The judge said the general principle and best practice on leave is when parties agree as stipulated in their contract of service but when an employer imposes leave on the employee it amounts to an interdiction or suspension, connoting a disciplinary process.
He said there was no established reasonable justification for the affected officers not to continue in service while the appraisal of vetting as it was called was underway.
CLANDESTINE
The appraisal has been going on clandestinely at the Office of the President under the leadership of the Attorney General’s office and the Directorate of Personnel Management.
Sources told the Star that AG Kihara Kariuki is leading the vetting team with Solicitor General Ken Ogeto as his alternate. The National Intelligence Service is also involved in supplying records of properties and corroborating the academic credentials of the interviewees to establish their credibility.
While the government has thrown a blanket of secrecy around the whole vetting exercise — the compliance and process of appraisal — sources confided in the Star that some officials have resorted to mischief in a bid to circumvent the order.
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Among those affected are fifteen ministries, departments, parastatals and some public universities. The culprits are in the ministries of Devolution, Education, Interior, Agriculture, Water and East African Community, the National Housing Corporation, the National Social Security Fund, the National Treasury, Office of the Attorney General and the National Land Commission.
Others are the Kenya Pipeline, the Kenya National Highways Authority, Geothermal Development Corporation and a number of public universities whose accounting and procurement heads continue to run the show despite their suspension.
An estimated 450 procurement and accounting officers submitted their particulars in accordance with the circular by the June 23 deadline.
The officials were required to submit detailed personal information to the Office of the President including bank statements, MPesa statements, records of properties and locations, and those of their spouses and relatives.
They were required to prepare detailed handing over reports to their deputies to ensure a smooth transition, and liaise with the National Treasury to change Ifmis passwords.
However, some of the officers are said to have retained their functions, including authority to incur expenditure (AIE), payment and even procurement approvals.
“It is like they are in office because they hold all the rights including even access to the Ifims. Actually they are processing all the payments from their homes,” a principal officer in one ministry told the Star.
“They did not hand over anyway. What can you say of someone calling you from home issuing orders if really he or she was suspended? Your guess is as good as mine,” he added in an interview with the Star.
But a director of procurement in one of the parastatals who handed over to his junior told the Star that the directive is fraught with danger.
“Procurement entities oversee purchases of goods and services in any institution. Unless the handover is done properly with the necessary instruments daily operations may be paralysed,” he said.
He added that there is nothing wrong with being consulted while away on issues that require his attention.
“We are still in charge because we were not sacked. We were also not suspended from work. We can appear in the office when needed but we are not required to handle any documentation,” he added.
However, the officer noted that depending on the relationship between the affected officers and heads of institutions, some have found themselves always on call to intervene where necessary.
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But three other officers holding brief for the affected employees told the Star they are finding it difficult to operate, blaming those on suspension for holding unto access rights, meaning their work is limited.
“I think the legal framework is not clear and doesn’t recognise the term ‘stepping aside’. Legally this officers are in office as they continue to earn salaries and allowances due to them as usual,” an officer told the Star in confidence.
Sources privy to the vetting said discrepancies had been identified in some of the appointment. For example, many officers recruited in 2014, months after the Jubilee administration took over, were handed crucial dockets without requisite qualifications.
For instance, officers with degrees in mathematics and statistics were appointed to head accounting units which required Bachelor of Commerce and CPA(K) qualifications.