Attorney-General Justin Muturi and the Public Service Commission (PSC) are entangled in a bitter clash over the hiring and promotion of State counsel even as reports of a vicious boardroom war at the State Law Office emerged.
In a letter, PSC Chief Executive Simon Rotich told Mr Muturi to stop the ongoing hiring in his office and the State Department of Justice.
Dr Rotich has accused Mr Muturi — in the letter dated September 21, 2023 — of proceeding with the hiring even after PSC had disallowed the exercise.
This even as Nation.Africa learnt of a cold war between Mr Muturi and Solicitor General Shadrack Mose.
In sharp contrast to the past office holders, where the AG was in charge and would delegate assignments to the Solicitor General, it has emerged that the two are both competing to answer directly to President William Ruto. So serious is the fallout, that the AG is reported to have found himself on the receiving end when he was reportedly put to task to respond to inquiries by the Head of State after Mr Moses reportedly raised some concerns in the affairs of the office.
“The situation was intense when the president confronted the AG after the SG raised some issues with him,” disclosed a source within the presidency who is aware of the recent happenings.
The source added: “This is disturbing especially when the Solicitor General bypasses the AG and deals directly with the President. In terms of the reporting line, it is just good practice to also rope in the AG.”
Separately, PSC said the Attorney General has no authority to recruit and promote public officers, warning that any hiring without the involvement of PSC would not be included in the public service payroll.
The fight over who has the mandate to hire in the public service has since found its way to the High Court. “It has come to the attention of the commission that the Attorney General intends to proceed with the recruitment and promotion of State Counsel in the Office of the Attorney General and Department of Justice, which the commission had earlier disallowed,” Dr Rotich states in the letter addressed to Mr Muturi.
“The commission wishes to point out that there is no constitutional or statutory provision that gives the Attorney General authority to recruit and promote public officers in the office of the Attorney General and Department of Justice.”
The letter copied to Chief of Staff and Head of the Public Service Felix Koskei, Treasury PS Chris Kiptoo, Public Service PS Amos Gathecha, Mr Mose and Auditor General Nancy Gathungu states that the authority to recruit, appoint or promote officers in the public service is vested with the commission.
“The purpose of this letter is to convey the decision of the commission that the process be terminated, and vacancies be declared to the commission for competitive recruitment,” Dr Rotich states.
“By copy of this letter, the Principal Secretary, State Department for Public Service is advised that any changes to the payroll should only be undertaken with the authority of the commission.”
When contacted, Mr Muturi referred to the Office of the Attorney General Act, No 49 of 2012. “Also note that under Article 234[2]{a} of the Constitution the PSC is subject to the same Constitution and legislation. The OAG Act No 49 of 2012 is one such legislation to which the PSC is subject,” said Mr Muturi.
Office of the Attorney General Act section two states that “in the execution of the functions conferred by the Constitution and this Act, the Attorney-General shall provide efficient and professional legal services to the government and the public for the purpose of facilitating, promoting and monitoring the rule of law, the protection of human rights and democracy”.
On Thursday, the High Court granted interim orders staying two controversial circulars issued to chairpersons and chief officers of State Corporations by the State Corporations Advisory Committee last month.
The orders were issued following an application by PSC, which argued that the circulars were unconstitutional.
The fight over the hiring mandate was triggered by a recent letter by Mr Muturi in advice to Prime Cabinet Secretary Musalia Mudavadi that the PSC has no powers to regulate human resources in parastatals.
The AG had cited Section 5(3) of the State Corporations Act, which he says provides for the power of a state corporation to employ the chief executive officer and other employees as well as to determine their terms and conditions of service.
But in a letter dated August 7, PSC told the AG that he relied on a provision that was declared unconstitutional by the courts.
“The said provision of the law has twice been declared unconstitutional by the Employment and Labour Relations Court whose decisions on the same have not been set aside by the Court of Appeal,” PSC stated.
The Court had ruled that section 5(3) of the State Corporations Act conflicts with Article 234 (2) as read together with Article 260 of the constitution on the regulation of the public service.
It determined that the regulation of the human resource of state corporations falls squarely under the constitutional mandate of the PSC.
According to the law, the Salaries and Remuneration Commission (SRC) has a constitutional mandate to advise on the remuneration and benefits of public officers.
“This advice of SRC is, however, supposed to be made to the Public Service Commission which has the responsibility of determining the terms and conditions of service of public officers in State Corporations as found by the courts,” PSC had noted.
Mr Mudavadi had sought clarifications on the powers of the SRC, PSC and State Corporations Advisory Committee (SCAC) in the running of state corporations.
According to Mr Muturi, the powers of PSC are limited to the offices established by the commission under Article 234(2)(a)(i) and do not extend to the establishment of state corporations.
“It is noted that the Attorney was a party to both petitions and your office did not prefer any appeal against the findings of the court,” PSC stated.
