An exit report by the outgoing Public Service Commission (PSC) chairman Anthony Muchiri has recommended reforms in hiring of officials in both the national and county governments.
Mr Muchiri, in the report submitted to President William Ruto, wants County Public Service Boards to cede some mandate to PSC.
The report says that PSC should be handed the oversight role to supervise inter-county transfers as well as to ensure ‘mobility, uniform standards and alignment of public service.’ Several reports by state agencies have cited counties for becoming employment bureaus and ethnic enclaves.
Counties have continued to breach various provisions that guide recruitment in public service by hiring majority staff from the dominant ethnic group as well as going above the set ceiling.
The commission also raised major threats encroaching on its hiring mandate by other public bodies, including the State Corporations Advisory Committee (SCAC). The report seeks protection of PSC’s mandate to ensure uniform remuneration across agencies.
“One area of missed opportunity in the current constitutional design is the fragmentation of the public service HR (Human Resource) function. County Public Service Boards operate autonomously, often leading to inconsistency in recruitment standards, discipline and talent development,” states the report.
“In hindsight, it would have been prudent for the framers of the Constitution to give the PSC oversight over higher-level HR functions in counties, including the power to effect inter-county transfers. This would ensure mobility, uniform standards, better alignment of public service values across the national and devolved units and particularly, a reduction of appeal cases received from Counties that are currently on a surge at the PSC.”
Section 65 (1) (e) of the County Governments Act, 2012 states that in selecting candidates for appointment, the County Public Service Board shall ensure at least 30 per cent of the vacant posts at entry level are filled by candidates not from the dominant ethnic community in the county.
The National Cohesion and Integration Act, 2008, further stipulates that no public establishment should employ more than one-third of its staff from the same ethnic group.
Section 7 (1) and (2) of the National Cohesion and Integration Act provides that public offices must seek to represent diversity in the employment of staff and that no public institution should have more than one-third of staff establishment from one ethnic community.
Remuneration and benefits
However, most counties continue to blatantly violate the statutory requirements, with some having nearly the entire workforce from one ethnic group.
The outgoing chairman’s report notes that the commission has consistently faced encroachment on its mandate by other public bodies like SCAC that continue to perform HR functions for state corporations, a role the High Court has affirmed belongs to the PSC.
“Similarly, the Salaries and Remuneration Commission (SRC) has been noted for directly advising public service agencies on remuneration, distorting pay structures and undermining the PSC’s authority as the employer to whom such advice should be directed.”
The report adds: “Further, amendments to the Attorney General’s Act, introduced through the Statute Law (Miscellaneous Amendments) Act No.3 had withdrawn the Constitutional powers and functions of the Commission to establish offices, appoint persons, and exercise disciplinary control over officers in the Office of the Attorney General and instead vested these powers in an Advisory Board within that Office.”
However, the Employment and Labour Relations Court declared the amendments unconstitutional, null and void.
MPs recently put the SRC on the spot for aiding the escalation of the mandate clash between the PSC, the SCAC and the Inspectorate of State Corporations (ISC).
The Constitutional Implementation Oversight Committee (CIOC) report indicates that PSC mentioned the two public agencies for “consistently” encroaching on its constitutional and statutory mandate in the management of human resources in state corporations and public universities, with SRC as an accomplice.
“SRC has exceeded its advisory role by directly engaging with agencies under PSC’s mandate rather than channeling advice through the designated employer,” reads the CIOC report to the House on the status of PSC compliance with implementation of the constitution.
The committee directed PSC to engage the Attorney-General to develop legislation bringing the State Corporations Act into full compliance with the constitution “to eliminate jurisdictional overlaps between PSC, SCAC and other agencies.”
The constitutional mandate of the SRC over public officers is to advise on remuneration and benefits.
However, PSC is captured in the CIOC report complaining that, whereas this advice “is supposed to be given to PSC as the employer of public officers, SRC has chosen to work with SCAC and the ISC.”
“SRC has consistently given advice directly to agencies that fall under the mandate of PSC, thereby distorting remuneration in the public service and intensifying discrimination, unfairness, and inequality,” the CIOC report captures PSC complaining.
According to PSC, despite clear constitutional and statutory mandates, fragmentation and gaps in the legal framework persist.
