The High Court has temporarily barred the newly appointed Commission Secretary and Chief Executive Officer of the Commission on Administrative Justice (Office of the Ombudsman), Naisiae Paloshe Tobiko, from assuming office pending the hearing of a petition challenging the legality of her recruitment.
The conservatory orders were issued after petitioners, Otieno Ombok and the Sulwe Community-Based Organisation, moved to court alleging that the recruitment process was conducted secretly and in violation of constitutional requirements on transparency, accountability and fair competition.
According to the petition, the Commission failed to publicly advertise the vacancy for the CEO position before announcing on June 9 that it had shortlisted ten candidates for interviews scheduled for June 16.
The petitioners contend that despite searching the Commission's website, newspapers and other public platforms, they could not trace any advertisement inviting applications for the position.
They further told the court that they wrote to the Commission on June 11 seeking information, including copies of the job advertisement, the qualifications required for the position, the longlist of applicants, the shortlisting report and resolutions authorising the recruitment process.
However, they claim the Commission ignored their request despite being the constitutional body mandated to enforce the right of access to information under Article 35 of the Constitution.
In the petition, the applicants argue that the recruitment process violated Articles 10 and 232 of the Constitution, which require public appointments to be conducted transparently, competitively and on merit.
"The recruitment process was initiated and undertaken in secrecy, denying qualified members of the public an opportunity to apply and undermining the constitutional values of transparency, accountability, fair competition and merit in public appointments," the petition states.
The petitioners also argue that the Commission's refusal to disclose recruitment records raises serious questions about the integrity of the exercise, particularly after it announced that it had received 40 applications despite no publicly available advertisement.
"The Constitution demands not only lawful outcomes in public appointments but also constitutionally compliant processes. A recruitment process that is constitutionally defective at its inception cannot be validated merely by subsequent interviews or appointments," the petitioners argue.
The interim court orders mean Tobiko cannot assume the office of Commission Secretary and CEO until the petition challenging the recruitment process is heard and determined.
The case now sets the stage for the court to determine whether the Ombudsman, the very institution tasked with promoting transparency, accountability and good governance in the public service, complied with those constitutional principles in recruiting its own chief executive.
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