Court Blocks Government Plan to Control Recruitment in State Corporations and Universities
The High Court has delivered a major setback to the government after declaring that the Attorney General (AG) had no legal authority to issue directives controlling how state corporations and public universities manage their human resource (HR) activities.
In a detailed ruling delivered on Friday, December 5, Justice Lawrence Mugambi firmly stated that the Attorney General’s directives could not override the constitutional powers given to the Public Service Commission (PSC).
The decision came after a petition filed jointly by Katiba Institute and anti-corruption advocate John Githongo, who argued that the AG and the State Corporations Advisory Committee (SCAC) had gone beyond their mandate.
The petition challenged two key advisory letters from the AG and SCAC that required state corporations and public universities to seek approval before hiring staff, making appointments, transferring employees, or setting employment terms.
The instructions demanded that any HR decisions be vetted by the Cabinet Secretary for Public Service and the SCAC—essentially placing these institutions under tighter government control.
Justice Mugambi disagreed with this approach, explaining that the Constitution already gives the PSC full responsibility over HR management across the public service.
Under Article 234, the PSC is in charge of establishing and abolishing public offices, monitoring and evaluating personnel management, investigating HR issues, and approving HR instruments such as staff structures, HR manuals, organisational charts, and career progression guidelines.
He stressed that these constitutional duties cannot be taken over or sidelined by any other government body. “These responsibilities cannot be usurped or bypassed by other bodies, including the State Corporations Advisory Committee or the Attorney General,” the judge stated.
In another significant finding, the court ruled that the Salaries and Remuneration Commission (SRC) also cannot directly advise state corporations and public universities on salaries and benefits.
Instead, any such advice must be channelled through the PSC to protect the constitutional order and avoid confusion in public service management.
Justice Mugambi added that unless the PSC formally delegates its powers in writing under Article 234(5), no other agency can perform its roles. Any actions taken without this formal delegation are unconstitutional and have no legal effect.
As a result, the court nullified the Attorney General’s advisory dated July 27, 2023, and the SCAC letter issued on August 8, 2023. He declared both directives unlawful, unconstitutional, and therefore invalid.
The judge also reiterated that state corporations and public universities fall squarely under the public service, meaning they must operate under the oversight of the PSC. This ruling strengthens accountability, clarity, and consistency in how HR matters are handled across public institutions.
Justice Mugambi cautioned that allowing entities like the AG or SRC to bypass the PSC creates confusion in government processes and undermines the structure set by the Constitution.
While the court acknowledged that the AG’s legal advice is generally binding, Justice Mugambi emphasised that such advice cannot be used to undermine constitutional bodies or interfere with their functions.
He further clarified that the High Court has both the jurisdiction and the final authority to interpret the Constitution and rule on whether the AG’s advice aligns with the law.
Overall, the ruling reinforces the PSC’s central role in regulating HR management in the public service and sends a clear message that constitutional boundaries must always be respected.
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