The vetting of heads of accounting and procurement has is now facing challenges following the rulling made by the Employment Labour Relations court where the court declared sections of theprocess unlawful on Friday.
According to Justice Byram Ongaya the mass suspension of the public servants and paying them at the same time was not only unconstitutional but adverse on taxpayers.
In her statement she said, “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.”
She also claimed that the Head of Public Service Joseph Kinyua’s circular was not favourable to the affected civil servants for want of due process required in normal employer-employee leave arrangements.
This was attributed by the fact that some civil servants despite been suspended they were still working behind the scenes from the comfort of their homes, handling duties they are supposed to have relinquished in collision with their senior managers.
The vetting process was initiated as soon a s President Kenyatta ordered all civil servants in procurement and accounting be vetted afresh.Then followed Kinyua’s circular four days later directing the affected civil servants 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.
According to StateHouse Spokes person Kanze Dena, “The head of public service will be issuing further clarifications in the coming days.”
It is the second time the circular was being challenged by activist Okiya Omtatah. The process was temporarily suspended by Justice Onesmus Makau on but he eventually reinstated it and extended the deadline for submitting the documents by 10 days.
He further filed another case challenging the payment of of full benefits to employees when they are idle.
According to Justice Ongaya, “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.”
He further added saying that best practice on leave is when parties have mutual agreement according to the contract 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.
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.
Accoring to reports, AG Kihara Kariuki is leading the vetting team assisted by Solicitor General Ken Ogeto, The National Intelligence Service is also involved in supplying records of properties and corroborating the academic credentials of the interviewees to establish their credibility.
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.
According to a principal officer in one ministry who seek anormity said, “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.”
He added, “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.”
But a director of procurement in one of the parastatals said, “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 added saying,“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.”
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.