Fake vacancies undermining public service
An artificial vacancy occurs when an office that is already lawfully occupied and fully functional is declared vacant and re-advertised.
As the nation reflects on 16 years since the promulgation of the 2010 Constitution, public conversation naturally gravitates to the grand successes of devolution and judicial autonomy. Yet the true survival of our democratic framework is tested daily at the grassroots.
A troubling trend has re-emerged within public administration: the creation of artificial vacancies. An artificial vacancy occurs when an office that is already lawfully occupied and fully functional is declared vacant and re-advertised through parallel recruitment tracks—without public notice, statutory justification, or civic sensitisation. It is maladministration dressed as human-resource housekeeping: a tool for displacing legitimate officers, opening parallel payroll channels, or clearing the way for nepotistic appointments.
When a public entity manufactures a vacancy behind closed doors, it assaults the progressive values of the 2010 Constitution—and none more directly than Articles 10 and 232, both of which insist that the public is a stakeholder in decisions about public office.
Article 10(2) makes public participation a binding national value. It is not enough for the State to act and explain later; decisions must be made with the people, not sprung upon them. The Supreme Court settled any doubt that this is aspirational rather than enforceable. A vacancy manufactured quietly is the precise opposite of that standard.
Article 232 translates the same value into the public service specifically. Beyond requiring fair competition and merit in appointments, Article 232(1)(d) demands the involvement of the people in policymaking, and 232(1)(f) demands transparency and timely information. An organisational review or a re-advertised post is itself a policy decision that engages these guarantees. Manufactured vacancies bypass both at once: they corrode merit-based recruitment while denying communities any chance to ask why a functioning office suddenly needs “filling” again.
This is not hypothetical. In Mwangi & another v Speaker, County Assembly of Laikipia & another [2025] KEELRC 547, the Employment and Labour Relations Court quashed a county assembly’s creation of a duplicate Deputy Clerk position, finding it unconstitutional for want of due process and organisational justification.
But litigation is a remedy of last resort, and the numbers show why so few citizens get that far. The Commission on Administrative Justice received 813 complaints against public institutions in 2025. Only 228, or 28 per cent, were resolved; 72 per cent remained pending. Nine institutions accounted for 77 per cent of all complaints, with pending rates ranging from 40 per cent at the Ministry of Interior to 89 per cent at Kenya Power. Delay was the leading complaint category, at 42 percent.
The same standard of real, effective participation affirmed by the Supreme Court must be applied with equal seriousness to the quieter, county-level and departmental decisions that rarely attract national attention but do the most damage to public trust. Every organisational review, staff establishment change, or re-advertisement of an occupied office should be preceded by public notice and a genuine opportunity for residents, taxpayers and affected officers to be heard.
Sixteen years into our constitutional journey, public office must remain a public trust rather than a commodity shuffled in the dark. The courts have shown that manufactured vacancies do not survive scrutiny. The task now is to ensure fewer citizens have to go to court at all by strengthening the Ombudsman’s enforcement teeth. Protecting the public service from manufactured vacancies is essential to ensuring that the rule of law applies equally to all Kenyans.
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Chemuna Amos
