PSC orders immediate release of Beatrice Mathenge from Registrar of Trade Unions post

The Public Service Commission (PSC) has directed Principal Secretary State Department of Labour and Skills Development Shadrack Mwadime to immediately release Beatrice Mathenge from her role as Registrar of Trade Unions.

Mathenge, whose tenure was nullified by a court ruling on November 3, 2023, is to return to the Office of the Attorney General and Department of Justice for redeployment.

PSC Chief Executive Officer Paul Famba said that Mathenge has remained in the position despite the court's decision.

“Ms. Beatrice Mathenge is hereby released from your State Department back to the Office of the Attorney-General and Department of Justice for deployment within the office with immediate effect,” Famba said in a letter dated August 2, 2024.

The Commission has now appointed Anne Kagwiria Kanake, the Deputy Registrar of Trade Unions, as the Acting Registrar for six months, during which time a substantive officeholder will be recruited.

“Ms Anne Kagwiria Kanake, the Deputy Registrar of Trade Unions, "CSG 6" be and is hereby appointed as the Acting Registrar of Trade Unions for a period of six (6) months pending the recruitment and appointment of the substantive office,” reads the letter.

The directive follows a complaint received by the PSC on July 17, 2024, from the Forum for Good Governance & Human Rights, which alleged that Mathenge’s continued tenure violated the court's ruling.

The Employment and Labour Relations Court had previously determined that the Registrar of Trade Unions must be appointed through a competitive and merit-based process as required by the Constitution.

“The practice whereby the Attorney-General's office would deploy a State Counsel of appropriate rank for the Cabinet Secretary to appoint as Registrar of Trade Union was superseded with the promulgation of the Constitution under which competitive and meritorious recruitment and appointment for the Registrar should be undertaken by the Public Service Commission as per Article 10, 232 of the Constitution,” the Court ruled.

Additionally, the court noted that any acting appointment for the position must adhere to the tenure specified in the Public Service Commission Act, 2017, particularly under section 34(3).

As a result, the court ordered the Appellant to immediately serve the ruling to both the PSC and the Cabinet Secretary at the Ministry of Labour and Social Protection. According to PSC, this was to facilitate the prompt recruitment and appointment of substantive holders for the nine vacancies in the approved establishment.

The court also mandated that these recruitment processes be conducted in line with the Constitution, relevant statutes, and career progression guidelines. It stressed the need to prioritize and expedite the recruitment of public officers for the Registrar of Trade Unions office to ensure the effective and ethical execution of the office's statutory duties.

Following the ruling, PSC noted that, in a letter dated November 3, 2023, the relevant office informed the Commission of the court's decision and requested the recruitment of several vacant positions, including Senior Deputy Registrar of Trade Unions - 1 post, Deputy Registrar of Trade Unions - 3 posts, Assistant Registrar of Trade Unions - 3 posts, Principal Registrar of Trade Unions - 3 posts and Registrar II/1 - 3 posts.

Concern

However, PSC expressed concern that subsequent requests, including one on February 19, 2024, for the recruitment of 172 vacant posts in the State Department, did not include an indent for the Registrar of Trade Unions position, as directed by the court.

“On February 19, 2024, your office forwarded another request to the Commission for the recruitment of 172 vacant posts in the State Department which included 2 posts of Principal Registrar of Trade Unions. The Commission notes with great concern that both requests did not have the indent for recruitment for the Office of Registrar of Trade Unions as directed by the Honourable Court,” PSC said.

Mathenge has repeatedly found herself in legal trouble for failing to register trade unions and disregarding court orders. In June 2024, the ELRC Court sentenced Mathenge to three months in prison or a fine of Sh200,000 for contempt of court. The sentence was handed down by Justice James Rika after Mathenge ignored an August 2023 court order to register the Kenya Musicians Union, represented by lawyer Kelly Malenya.

Justice Rika condemned Mathenge for her blatant contempt of court, describing her actions as "gut-wrenching contumacy" and accusing her of being influenced by "shadowy characters" rather than following the court’s directive.

In her defense, Mathenge offered a range of explanations, including work pressure, a backlog of duties, and being the only technical officer in her office. She claimed that these challenges prevented her from complying with the court's order.

However, Justice Rika dismissed these justifications, noting that as a lawyer and officer of the court, Mathenge should have understood the importance of adhering to judicial rulings.

Justice Rika criticised Mathenge’s excuses. He expressed regret that Mathenge had become a “serial contemnor,” noting that this was not her first offense.

In November 2023, she was convicted and fined Sh100,000, or faced a one-month prison term, for failing to comply with a court judgment regarding the registration of the Kenya Medical Practitioners, Pharmacists and Dentists Union.

Justice Rika concluded that Mathenge’s repeated offenses and unconvincing explanations warranted a harsher penalty.