The fate of dozens of Kenya Ports Authority employees affected by a new human resource policy hangs in the balance after the Public Service Commission termed it unconstitutional and illegal.
KPA recently revised its organisational structure based on the strength of a letter from National Treasury Cabinet Secretary Ukur Yatani, but the PSC says the minister does not have such powers.
The commission says it is the only state agency with authority to approve the development or review of the organisational structure of a public organisation.
“Implementation of any establishment or organisation structure without the approval of the commission is unconstitutional and unlawful,” PSC chief officer Kevin Rotich said.
A civil dispute has been filed in court pitting the KPA Board of Directors against Genesis for Human Rights Commission (GHRC) over the changes.
The lobby has sued the authority over alterations in its HR policies, which it says have affected the deployment of staff.
Mr Rotich said the commission has not received any request to establish new positions or review the KPA organisational structure as required by the law.
“If KPA has embarked on implementing a new organisational structure, it is unconstitutional and unlawful as the structure has not been approved by the PSC,” he said.
GHRC accuses KPA of not including other stakeholders when formulating and presenting the policy for approval, thus denying the procedure legitimacy, trust and cohesiveness.
It adds that if the irregularity by KPA stays, a trend will be set where the rule of law and laid down procedures in public institutions would constantly be ignored.
The lobby has also demanded to be told why Mr Yatani approved the revised policy when he has no authority to do so.
It says KPA considered and approved 38 staff appointments and deployments through a resolution of a special board meeting.
The lobby says few employees benefited from a non-inclusive process following the resolution and approval by the minister.
PSC appears to agree with the group, arguing that the powers by the responsible minister to approve such changes no longer exist following the promulgation of the country’s current Constitution in 2010.
Mr Rotich said whereas the Cabinet Secretary had the power to approve an organisational structure of state corporations upon advice and recommendations of the State Corporations Advisory Committee, he can no longer do so as the same is under the purview of the PSC.
“To the extent that the KPA Board of Directors and the ministry concerned have not sought approval of the commission on the revised organisation structure and any other revised human resource instruments of the KPA, they cannot be implemented,” he said.
“The implementation ought to be stopped and/or prohibited until the commission has considered and approved the same.”
The lobby wants the court to quash the implementation of the proposed revised policy and the subsequent deployment of the 38 KPA employees.
