A dispute between the Public Service Commission (PSC) and Attorney-General Justin Muturi over the recruitment and remuneration of parastatal staff has sucked in Prime Cabinet Secretary Musalia Mudavadi as government officials feud over legal mandates.
PSC, in a confidential correspondence obtained by Nation, has told off Mr Muturi for allegedly giving Mr Mudavadi misleading and unconstitutional advise on the operations of State corporations.
Mr Muturi had in a letter dated July 27 told Mr Mudavadi that PSC has no powers in managing workers in parastatals.
He cited Section 5(3) of the State Corporations Act, which he said empowers a State corporation to employ the chief executive officer and other employees as well as to determine their terms and conditions of service.
“Under the provision, a State corporation may engage and employ such a number of staff, including the chief executive officer. The approval of the terms and conditions is by the Cabinet Secretary in consultation with the State Corporations Advisory Committee (SCAC),” stated Mr Muturi in his advisory.
But in a letter dated August 7, PSC Chief Executive Officer Simon Rotich told the AG that he relied on a provision that had been declared unconstitutional by the courts.
“The said provision of the law has twice been declared unconstitutional by the Employment and Labour Relations Court whose decisions on the same have not been set aside by the Court of Appeal,” Dr Rotich said.
The Court of Appeal had ruled that section 5(3) of the State Corporations Act is in conflict with Article 234 (2) — as read together with Article 260 — of the Constitution on the management of the public service.
The court determined that the regulation of the human resource function in State corporations falls squarely under the constitutional mandate of PSC.
According to the law, the Salaries and Remuneration Commission (SRC) has a constitutional mandate to advise on the remuneration and benefits of public officers.
“This advice of SRC is, however, supposed to be made to the Public Service Commission, which has the responsibility of determining the terms and conditions of service for public officers in State Corporations as [was established] by the courts,” said Dr Rotich.
Mr Mudavadi had asked for clarification on the powers and responsibilities of the SRC, the PSC and the SCAC in the running of State corporations.
According to Mr Muturi, the powers of PSC are limited to the offices established by the commission under Article 234(2)(a)(i) and does not extend to the establishment of State corporations.
But PSC insists that the court decisions are binding unless set aside by the Court of Appeal.
“It is noted that the Attorney-General was a party to both petitions and your office did not prefer any appeal against the findings of the court,” states PSC.
The tough response was copied to Mr Mudavadi, Chief of Staff and Head of Public Service Felix Koskei, Secretary to the Cabinet Mercy Wanjau, SRC chairperson Lyn Mengich, Solicitor-General Shadrack Mose and State Corporations Advisory Committee Chairperson Philip Mong’ony.
In the letter, PSC maintains that it will continue discharging its mandate in supervising how parastatals hire and remunerate their staff.
The commission noted that “unlike all advisories that are usually issued by the Office of the Attorney-General, the advisory to Mr Mudavadi did not make any references to the determination of the court.”
“The commission resolved to continue to exercise its constitutional mandate [with regard to] State corporations as spelt out in the Constitution and the Public Service Commission Act. The court cases clearly spell out and affirm the commission’s constitutional mandate over State Corporations,” said Dr Rotich.