Fate of 33 Mandera chief officers uncertain

The fate of 33 nominees for chief officer in Mandera hangs in the balance after a court stopped their vetting by the county assembly.

At least four petitions have been filed by different residents at the High Court in Nairobi challenging the nomination process and the high number of job opportunities created.

Last Thursday, Justice James Rika stopped the vetting just a day after the Mandera assembly had embarked on it.

A day earlier, Justice Mbaru Monica issued stay orders halting the same process in a petition filed by Mr Ibrahim Barre Abdi.

The respondents in all the four petitions are Governor Mohamed Adan Khalif, the Mandera County Assembly clerk, the Speaker and the County Public Service Board.

Constituted executive

Governor Khalif is racing against time to settle the matter in or out of court so that he can have a fully constituted executive before the end of the year.

The assembly will proceed on a long recess from December 10 to February, complicating the vetting and approval of the chief officer nominees.

The stalemate has seen the governor pitch camp in Nairobi for the last two weeks, with sources close to him revealing that he is reaching out to the petitioners to drop the cases.

In a petition filed by Mr Abdullahi Mohamed Ahmed, Nairobi Employment and Labour Relations Court Judge James Rika ruled that the respondents “are at liberty to proceed with the processes of vetting and approval of the nominees but they shall however not issue any letters of appointment or contracts of employment, to any of the nominees, until further orders of the court”.

Mr Ahmed questioned how the Mandera County government appointed 33 chief officers when the national government had 51 principal secretaries.

"The national government appointed 51 principal secretaries for the whole country, how can Mandera, the second poorest county, have 33 county chief officers?" he posed.

Speaking to Nation.Africa, Mr Ahmed accused the County Public Service Board of failing to conduct competitive recruitment in conformity with the Constitution and other statutory laws.

Chief officers

On September 26, the board advertised 28 vacancies for the position of chief officers for various departments, and on October 26, 153 candidates were shortlisted.

On November 14, the assembly clerk shortlisted 33 nominees for interviews to start on November 24.

The assembly, through its various committees, had planned to vet at least 14 nominees on Thursday and Friday and finish with five others on Saturday last week.

“We had started the process of vetting the nominees on Thursday last week but a court injunction came and we decided to obey it. We have halted the process until advised otherwise by the courts,” said Leader of Majority Ahmed Rashid Mohamed.

As Ms Ethila Mohamed, the chairperson of the board engaged the press in a hide and seek game, Mr Mohamed Adow Hussein, the board’s secretary, could not explain how the number ballooned to 33.

“We carried out interviews and shortlisted candidates that we forwarded to the governor. It was up to him to pick the number required for the positions,” Mr Adow said.

Reliable sources on the board revealed that about eight nominees for the positions on the final list did not attend the interviews carried out over three days.

“How realistic is it to interview 153 people in three days? The county government needs to get serious about processes laid down in this country,” said resident Adan Maalim.  

The board interviewed all 153 nominees within three days, starting on November 1.
Mr Ahmed said in his petition that it was evident that the nominations did not take into account ethnic balance, the two-thirds gender principle, and the interests of people with disabilities and the youth.

Murule Sub-tribe

“[In the] impugned list of 33 nominees, 18 are from the Garre Sub-tribe, five from the Degodia Sub-tribe, four from the Murule Sub-tribe, three from the Corner Sub-tribe which depicts tribe imbalance,” Mr Abdullahi said.

He also argued that the composition of the list contravened the gender equality principle under Article 27 (8) as there are only nine women nominees.

The petitioner pointed out that Ms Miski Hassan Abdi, nominated as chief officer for Cooperative Development and Marketing graduated in November 2021.

This means she does not meet the required minimum 10 years’ experience and five years in a leadership or management position in the public or private sector as advertised and as required by law.

“The impugned list, unless constituted according to the dictates of the Constitution, may lead to misuse of resources contrary to article 201(d),” he said.

Mr Ahmed said the list leaked to the public way before the nominations were announced on November 14, meaning that it was a premeditated process.

He said the actions of the respondents may lead to autocratic governance, exclusion of the concerned parties and as a result loss of public confidence in the leadership of the county.

Assumed powers

“Consequently, the governor assumed powers that he doesn't have in law purporting to appoint chief officers who are strangers in law and the extra five were nominated without due process,” he said.

“There is no evidence of an existing Executive Order to increase the positions by the governor and he assumed [the] powers of the County Public Service Board under article 235 (1) of the Constitution and County Government Act,” Mr Ahmed said.

In his ruling, Justice Rika noted that the application was made late when the vetting process had already kicked off at the assembly.

He observed that the vetting, approval and appointment are important mandates of the respondents and that the courts must restrain themselves from interfering with the constitutional and statutory mandates of other arms of government, unless there is a clear, well-founded constitutional and legal reason to do so.

He said the nominees have reasonable expectation that the remaining processes will be carried out, adding that they have an identifiable and legal interest in the remaining processes, which the petitioner seeks the court to suspend.

“There are individual allegations made against the nominees. Miski, for instance, is said not to have requisite work experience. The nominees should be involved in this petition,” Justice Rika ruled. 

“It is important that they are able to demonstrate before the court their qualifications, experience and ethnicity, if ethnicity and clannism are indeed integral to their appointment. 

“They should not be denied their opportunity to work in the County Public Service without the benefit of hearing from them individually.”

Interested parties

He ordered all the 33 nominees to be enjoined in the petition as interested parties.

An inter partes hearing is set for December 2.

In the Ibrahim Barre Abdi petition, through Elizabeth Nyakundi and Company Advocates, stay orders were issued against the vetting and approval of the 33 nominees by the assembly.

Mr Abdi claims the list of nominees is illegal and unconstitutional as it is discriminatory, contrary to the provisions of Article 27 of the Constitution, for it excludes people with disabilities who had applied for the same positions.

The secretary of the board “abused [his] office by forwarding a list of nominees exceeding by five the number of positions advertised”, Mr Abdi argued.

He said board acted unconstitutionally and illegally by creating five new offices without following due process including seeking approval from the assembly.

Justice Mbaru Monica restrained respondents from conducting or receiving any lists of persons vetted or to be vetted or nominated to the position of chief officer in Mandera.

Halting of the process means Governor Khalif will have to seek other ways of resolving the stalemate, including engaging clan elders to reach out to the petitioners.

“We have people in Mandera specialised in using courts to defraud others and this happened during the previous administration. We have a few genuine people among the petitioners, but some of these cases are going to fall along the way,” said resident Daud Ali.

Other petitioners are Mr Hussein Osman Hassan Kinto, Ibrahim Daudi Barre, Mohamed Abdi Adan and Abdirahaman Adan Hussein.

The last three are enjoined in one of the four petitions.