In Summary
  • The position of the Auditor-General is currently vacant as Mr Edward Ouko's term expired in August 2019.
  • There was a recruitment but the selection panel could not nominate three people for appointment by the President, saying none qualified.
  • Activist Okiya Omtatah argues that the panel’s decision to cancel the recruitment process was unlawful and ultra vires (beyond one's legal power), since neither the President nor the panel has any inherent powers beyond what is stated in law.
  • Mr Omtatah expressed fear that the second recruitment process will likely result in persons not among the successful candidates and that the court will not be able to reverse the decisions or compensate the public for monies spent.

The Employment and Labour Relations Court has suspended recruitment of an Auditor-General pending determination of a case filed by activist Okiya Omtatah.

The position of the Auditor-General is currently vacant as Mr Edward Ouko's term expired in August 2019.

There was a recruitment last year but the selection panel could not nominate three people for appointment by the President, saying none qualified.

Following this report, the Public Service Commission (PSC) said the government decided to re-advertise the vacancy.

PANEL'S POWERS

Mr Omtatah then sued the panel, noting it reported that candidates met technical requirements including academic qualifications, but scored poorly in tests for independence, diplomacy and tact, which were key considerations.

The activist argues that where persons meet eligibility thresholds set in the Constitution and in law, the selection panel does not have the power to decline to select three candidates from those it interviewed and forward their names to President Uhuru Kenyatta.

Mr Omtatah further argues that the panel’s decision to cancel the recruitment was unlawful and ultra vires (beyond one's legal power), since neither the President nor the panel has any inherent powers beyond what is stated in law.

“The decision to re-advertise the vacancy in the position of Auditor-General is unconstitutional and, therefore, invalid, null and void,” he said.

THE RULING

Justice Stephen Radido's ruling on Friday temporarily blocked re-advertisement of the post, whose vacancy was first announced last December.

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