In a significant ruling that reinforces the boundaries of constitutional authority, the High Court in Nairobi has struck down Executive Order No. 3 of 2024, declaring it an unlawful overreach into the domain of an independent commission. The decision, delivered by Justice Lawrence N. Mugambi, centers on a fundamental question: who holds the power to manage the terms and conditions of service for employees of state corporations?
The case was initiated by the Law Society of Kenya, which challenged the legality of guidelines issued by the President in May 2024. These guidelines purported to set the rules for hiring, employment terms, and management of staff and board members across all state corporations and public universities. The Society argued that this action directly trespassed on the constitutional territory of the Public Service Commission, the body specifically established to oversee human resources within the public service.
In its defense, the State, along with the State Corporations Advisory Committee, contended that the Executive Order was valid. They pointed to specific sections of the older State Corporations Act, arguing that this legislation granted them the authority to issue such guidelines. They further claimed that the Public Service Commission’s role was merely advisory, limited to making recommendations to the government on policy matters.
The court, however, delivered a robust constitutional lesson. It meticulously explained that the 2010 Constitution created independent commissions like the Public Service Commission for a precise reason: to act as guardians of specific governance functions, free from executive interference. The judgment emphasized that the Commission’s powers, explicitly listed in Article 234 of the Constitution, are not mere suggestions that can be overridden by ordinary legislation.
Justice Mugambi firmly rejected the State’s interpretation, stating that the phrase “subject to the Constitution and legislation” does not mean that Parliament can strip a constitutional commission of its core functions. To hold otherwise, the court reasoned, would make a mockery of the Constitution’s design. The specific powers to establish offices, appoint staff, and review conditions of service in the public service are vested in the Public Service Commission by the supreme law itself. These powers cannot be reassigned or diluted by an Act of Parliament or an Executive Order.
Crucially, the court affirmed that state corporations and public universities are unequivocally part of the “public service.” This finding, supported by previous Court of Appeal decisions, means that their employees are public officers. Consequently, their human resource management falls squarely within the constitutional mandate of the Public Service Commission.
The ruling found that Sections 5(3) and 27 of the State Corporations Act, which the Executive Order relied upon, are fundamentally inconsistent with the Constitution. By allowing a Cabinet Secretary and an advisory committee to approve staff terms and conditions, these sections directly infringe upon the Commission’s exclusive domain. The court declared these provisions unconstitutional, rendering the guidelines built upon them invalid.
Ultimately, the court issued a series of orders to rectify the constitutional breach. It quashed the Executive Order and the accompanying guidelines through orders of certiorari. It also issued several declaratory orders to provide lasting clarity, affirming that the Public Service Commission is the supreme authority on human resource matters within the public service, a category that includes state corporations and universities. The only exception, the court noted, would be if the Commission itself, in writing, delegates any of its functions—a power it holds, but one that was not exercised in this case.
See more HERE
Leave a Reply