High Court invalidates State corporation management guidelines limiting PSC
The court determined that transferring constitutional functions in this manner, except through the delegation allowed under Article 234 (5) of the Constitution, is invalid.
The High Court has declared unlawful the government’s 2024 guidelines on State corporations, ruling that they unlawfully reduced the powers of the Public Service Commission (PSC).
The decision shows the court’s position that constitutional mandates cannot be reassigned through executive directives.
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The guidelines, issued in June 2024 under Executive Order No. 3 by President William Ruto, directed boards of State corporations and Cabinet Secretaries to adopt new management and human resource practices.
According to the Law Society of Kenya (LSK), the instructions effectively shifted some PSC and Salaries and Remuneration Commission (SRC) responsibilities to the State Corporations Advisory Committee (SCAC) and the Treasury.
The court determined that transferring constitutional functions in this manner, except through the delegation allowed under Article 234 (5) of the Constitution, is invalid.
Judges noted that legislation may clarify or expand the PSC’s responsibilities, but it cannot diminish the core functions guaranteed by the Constitution.
“It follows, therefore, that if the impugned guidelines were premised on unconstitutional statutory provisions, then they would fail the constitutional threshold,” the ruling stated.
LSK challenged the executive order last year, arguing that it sought to create a parallel public service under the Office of the President.
The organisation said the move contradicted the Constitution and threatened the independence and autonomy of the PSC.
In a gazette notice issued in May 2024, the President indicated that these guidelines would replace previous instructions from November 2004.
The court highlighted that the PSC plays a critical role in maintaining an impartial, merit-based public service.
“Permitting nibbling of its constitutionally protected mandate will increasingly weaken the Public Service Commission and leave it exposed to external interference, yet the framers of the Constitution wanted a Public Service Commission that is independent, with its specific functions ring-fenced in the Constitution to shield them from encroachment,” the judgment said.
The High Court also struck down Section 5 (3) and 27 (c) of the State Corporations Act, finding that their continued application would erode the PSC’s mandate and contravene Article 249 (2) (a) of the Constitution.
LSK noted that the Employment and Labour Relations Court had previously ruled Section 5 (3) unconstitutional for conflicting with Articles 234 (2) and 260 regarding public service regulation.
Following the executive order, Attorney General and Chief of Staff and Head of Public Service Felix Koskei had instructed all 330 State corporations, public universities, and boards to implement the new guidelines and convened a forum to ensure compliance. The court’s ruling now restores the PSC’s exclusive oversight of public service matters as intended by the Constitution.
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