Court consolidates cases challenging AG Muturi's letter on state appointments
Attorney General Justin Muturi when he appeared before the Committee on Delegated Legislation of the Senate at KICC, Nairobi on April 16, 2024.
What you need to know:
- Petition, which filed in Mombasa, has since been transferred to Nairobi.
- High Court says it raises similar issues to the one filed by John Githongo.
The High Court has consolidated two petitions challenging Attorney General Justin Muturi’s advisory letter concerning appointments and creation of offices at state corporations and public universities.
Justice Lawrence Mugambi ruled that the petition filed by Julius Ogogoh in Mombasa, which has since been transferred to Nairobi, raises similar issues to the one filed by former anti-corruption PS John Githongo.
The judge said it was not disputed that the two matters were founded on the same facts, although the petitioners were different.
“The fact that they are founded on the same facts makes their consolidation feasible as it would be injudicious to allow multiple matters proceedings based on same facts,” the judge said.
In the petition, Mr Ogogoh faults Mr Muturi of abdicating his duty as the principal legal advisor to the government and clothing himself with non-existent powers of being an unnecessary arbiter between independent government entities.
This was after Mr Muturi sent a letter to the Chief Executive Officer of the Public Service Commission (PSC) Simon Rotich on August 16, 2023 on interpretation of PSC’s mandate.
The dispute started following a circular letter from Prime Cabinet Secretary Musalia Mudavadi on May 16, 2023 and June 8, 2023 where he sought opinion from Mr Muturi on the Proposed Guidelines on Management and Terms and Conditions of Service for board members and staff of State corporations.
Mr Mudavadi also sought an opinion on the issue of jurisdiction in relation to state corporations, the constitutional powers of the PSC in relation to the human resource function.
According to Mr Muturi, the PSC had no powers to establish or abolish offices in the public service, appoint persons, hold or act in those offices, or confirm appointments and exercise disciplinary control over persons in those offices.
Mr Muturi further said such powers can be adopted by the State Corporation Advisory Committee (SCAC) through the State Corporation Act and the Office of the Attorney General Act.
But Mr Ogogoh argues that the sole constitutional mandate of developing and approving Human Resource Instruments in the Public Service lies with the PSC.
The PSC has on its part dismissed Mr Muturi’s opinion and accused him of disregarding court decisions which stated that SCAC has no powers to employ staff or review the corporations and recommend re-organisation.
SCAC escalated the matter and issued a circular letter (Ref. No. OP/SCAC 9/21/2/II) on August 21, 2023 addressed to board chairpersons and all State corporations to the effect that they will be held personally accountable if they do not conform to Mr Muturi’s advisory opinion contained in his two letters.
Mr Ogogoh wants the court to quash Mr Muturi’s opinion and the circular issued by SCAC and for the court to declare that SCAC’s mandate in accordance with Section 27 of the State Corporations Act is only limited to advisory to the President.
“A declaration that the sole constitutional mandate to develop and approve Human Resource Instruments in the Public Service in accordance with Article 234(1) of the Constitution lies with the 1st Interested Party (PSC),” the petition reads.
