A labour court has allowed former Communications Authority of Kenya Director General Francis Wangusi to withhold the handing over of the office until a lawful board is put in place.
Employment and Labour Relations Judge Onesmus Makau said any purported recruitment of the successor of Francis Wangusi as DG of the CA is ‘unconstitutional and unlawful and is hereby nullified’.
The court said there was no dispute that it was the board which is vested with the power to appoint the DG and therefore only the board enjoys statutory power to appoint an acting Director General.
Following the lapse of the term of Wangusi on August 21, this year, the court observed that he has not handed the office over because the board was not in place and operational as at that date.
Makau said the proper duty of the former DG is to handover the office to the board once the Board is properly constituted.
The court considered that in the unique situation of absence of a proper board and a vacancy in the office of the DG, remedial measures by the president as envisaged in section 7 of state corporation Act is available.
“The court will not write an extension contract service for Wangusi but it is for the respondents (CS Information Joe Mucheru, PSC and Attorney General) within the relevant statutory and constitutional provisions to make such appropriate decisions which if deemed necessary may entail the recall of Wangusi or requesting the president to take such remedial measures in the interim,” said Makau.
For avoidance of doubt, the Judge said there is nothing unlawful or in breach of his contract of service as DG for Wangusi to withhold the handing over of the office until such time a proper and lawful board is in place and an acting or substantive director is lawfully appointed to receive the handover.
In determining whether the appointment of the four board members (Mahamoud Mohamed Noor, Paul Muraguri, Jackson Kemboi and Laura Chite) by a gazette notice dated June 18, this year, was lawful and constitutional, the Judge said the appointments did not comply with the constitutional procedures and provisions in the Public Service Commission’s Act, 2017, on advertisement and competitive recruitment procedures.
“It is true that the appointed persons may be suited for the membership on the board. However, the court returns that their identification must fit the constitutional and statutory transparent and accountable procedures,” he said. The Judge quashed the gazette notice in which CS Mucheru appointed the four.
He also declared that section 6 (1) (e) of the Kenya Information and Communication Act does not empower the CS to handpick and appoint persons to the CA board, without subjecting them to a fair, open, competitive, merit based and inclusive recruitment process and without involving the Public Service Commission.
Section 6 provides that in appointing members of the board, the CS shall ensure that the appointees to the board reflect the interests of all section of society and equal opportunities for persons with disabilities.
“The respondents should ensure that seamless transition in leadership in public agencies be a norm rather an exception and that the same should form what is envisaged in the constitution under the rule of law and safeguarding public interest,” he said.
