CONSTITUTIONAL PETITION NO 331 OF 2016
KATIBA INSTITUTE…………………………………………………………1ST PETITIONER
AFRICA CENTRE FOR OPEN GOVERNANCE…………………………..…2ND PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL…………………1ST RESPONDENT
THE PUBLIC SERVICE COMMISSION…….…….2ND RESPONDENT
JUDGMENT
[1] The petitioners are non-governmental organizations and public interest litigants. They have filed this petition against the Attorney General, the principal legal adviser to the government and the legal representative of the national government in civil
proceedings in which it is a party, the 1st respondent, and the Public Service Commission, herein after, PSC, a constitutional
commission established under Article 233 of the Constitution with the mandate to establish and abolish offices in the public service, appoint persons to hold or act in those offices and confirm such appointments, the 2nd respondent.
[2] The petition challenges the selection and appointment by the President and members of his cabinet, of persons to the positions of chairpersons and members of boards to various state corporations and parastatals. The basis for this challenge is that the mandate to select and appoint persons to those positions should be exercised by the 2nd respondent, and in accordance with the values and principles in Articles 10 and 232 of the Constitution.
[3] In this regard, it is the petitioners’ case that provisions in various statutes that purport to give power to the President and should be nullified. The petitioners further seek a declaration that any selection and appointment of persons as chairpersons and members of boards of state corporations and parastatals specified at paragraph 58 of the Petition, must be based on the principles including; fair competition and merit and that the process be transparent and accountable as required by Article 232(1) (e) to (f) and 232(2).
[4] The petitioners also seek to have all appointments made by the President or cabinet secretaries on 11th March 2016 and gazetted in Gazette Notice Vol. CXVIII – No.23; those made on 18th March 2016 and gazetted in Gazette Vol. CXVIII – No.28; those made on 10th June 2016 and gazetted in Gazette No. Vol CXVIII-No. 62; 17th June 2016 under Gazette Notice Vol. CXVIII – No.66; those made on 24th June 2016 under Gazette Notice Vol. CXVIII – No. 70; and those made on 1st July 2016 vide Gazette Notice Vol. CXVII – No.72, invalidated.
[5] The petitioners’ primary argument is that positions of chairpersons and members of boards of state corporations and
parastatals are public offices in the public service, and that those appointed to those positions are public officers within the meaning of the Constitution and are, therefore, subject to the constitutional provisions applicable to public service. The
petitioners rely on Article 260 of the Constitution on the definition of public service.