PSC backs petition challenging promotions at Attorney General’s office
The Employment and Labour Relations Court had suspended the appointments after Gikenyi claimed they were not filled competitively and lacked diversity.
A court battle is brewing over promotions at the Attorney General’s office after the Public Service Commission (PSC) declared them unconstitutional.
PSC has sided with a petitioner who claims the appointments were made without fair competition, violating gender and ethnic balance requirements. The court had earlier suspended the promotions, and the case is set for a hearing next week.
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The petition, filed by Benjamin Magare-Gikenyi, challenges the promotion of senior officials in the AG’s office late last year. The Employment and Labour Relations Court had suspended the appointments after Gikenyi claimed they were not filled competitively and lacked diversity.
“The commission supports the petition fully and humbly urges this honourable court to grant all the reliefs therein as particularised,” PSC said in its submission to the court.
Gikenyi said that out of the 15 senior positions filled on November 26, nine were awarded to individuals from the same ethnic group, while 12 of the positions went to women, raising concerns over gender and ethnic inclusivity.
PSC maintained that the promotions were in “gross violation and contravention” of the Constitution, the Public Service Act, the Office of the Attorney-General Act, and PSC’s Human Resource Policies and Procedures Manual.
John Kimani, a director at PSC, emphasised that public service appointments must adhere to constitutional, statutory and regulatory requirements.
“Compliance with these requirements is not a matter of choice but a mandatory duty to be observed in the public service,” Kimani said.
He warned that failure to uphold fair competition in promotions would perpetuate a culture of impunity in public institutions.
PSC also distanced itself from the approval of the promotions, stating that its representative at the AG’s advisory board meeting was misled into believing that due process had been followed.
“As a result of the impugned promotions, the commission has deemed the participation of its chairperson in the membership of the Advisory Board of the Office of the Attorney-General no longer tenable,” PSC said.
The promotions had been announced by Solicitor-General Shadrack Mose in a memo dated November 26. Justice Byram Ongaya suspended them pending the court’s determination of the case, which is set for directions on February 11, 2025.
Gikenyi argued that qualified state lawyers were not given an opportunity to compete for the promotions and that the AG lacked the authority to appoint individuals to certain senior ranks.
“The fact that out of the 15 top technical positions in the Office of the Attorney-General, 12 were given to one gender is prima facie discriminatory and against constitutional principles for gender inclusion,” he said.
The positions under contestation include two senior Deputy Attorneys-General, 13 Deputy Attorneys-General, four chief state counsel, 63 deputy chief state counsel, and 145 principal state counsel.
However, 70 senior state counsel and one ICT officer positions were not challenged.
In defense of the promotions, Oscar Eredi, representing the AG, said the promotions were procedural and an earlier advertisement for the positions had been “caught up in the transition and de-linking of the AG’s office and PSC.”
Eredi explained that the AG’s office began promoting officials who had remained in the same positions for a long time following its separation from PSC.
“Following the delinking, the Attorney-General embarked on the process of operationalising the Act in line with the amendments that had been made thereto,” Mose said in an affidavit.
Mose further noted that a review of staffing levels was necessary to enhance service delivery and meet the office’s constitutional mandate. He insisted that the promotions adhered to all legal requirements, including age and regional balance considerations.
Eredi also pointed out that about 70 per cent of the AG’s office staff are women.
The court is expected to issue further directions on the case in its
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