The Employment and Labour Relations Court has overturned more than 200 promotions at the Attorney-General’s Office from late last year, as the officers were promoted without competition and lacked gender and ethnic diversity.
Justice Byram Ongaya also quashed the Statute Law (Miscellaneous Amendments) Act 2024, which transferred some of the Public Service Commission's (PSC) powers to the Attorney-General, deeming it unconstitutional and therefore null and void.
Of the 15 senior positions filled on November 26 last year, nine were filled by individuals from the same ethnic community, while 12 of the appointees were female.
“The Court has found that the impugned amendments were unconstitutional and the impugned promotions contrary to the law and constitution as urged for the petitioners,” said the judge.
Justice Ongaya said that the advisory board established under Section 20A of the Office of the Attorney-General Act had no legal authority to appoint or promote any individuals within the Attorney-General's Office.
The positions in question included two senior deputy solicitor generals, 13 deputy solicitor generals, four chief state counsels, 63 deputy chief state counsels, and 145 principal state counsels.
Three petitioners, including Dr Magare Gikenyi, Dishon Keroti Mogire and Philemon Abuga Nyakundi, challenged the promotions, arguing that the positions had not been filled competitively, and that there was a lack of ethnic and gender balance.
Justice Ongaya ruled that all appointments and promotions (other than for common establishment positions) in the Attorney-General’s office must be based on fair competition, merit and gender balance, and must reflect the diversity of Kenyan society in terms of ethnicity and region.
Attorney-General Dorcas Oduor had defended the amendments and the promotions, arguing that the changes had been made after the office had been delinked from the mainstream public service, and that the deputy solicitor general and state counsel had been removed from the purview of the Public Service Commission (PSC).
Following the delinking, the Attorney-General and the Advisory Board undertook a review of the office and its practices, including the human resources function. They established that many officers had stagnated within certain job groups, while others had served in an acting capacity for extended periods.
The Attorney-General added that a review of the office's structure revealed vacancies at the senior deputy solicitor general and deputy solicitor general levels compared to the approved structure.
She added that the review revealed that several department heads had served in acting capacities for more than six months, with some serving up to seven years, while other senior officers eligible for these positions had remained in the same job group for more than 10 years.
“That following the delinking, the Hon Attorney-General embarked on the process of the operationalisation of the Act in line with the amendments that had been made thereto,” Solicitor-General Shadrack Mose said in an affidavit.
He added that one of the processes involved reviewing the staffing levels to enable the office to fulfil its constitutional mandate and provide services to Kenyans efficiently and effectively.
He said that promotions took into account all requirements, including age, those in acting capacities, and regional balance.
Mr Mose also pointed out that around 70 per cent of the Attorney General’s office workforce were women.
However, Justice Ongaya noted that a serious amendment had been introduced by way of a miscellaneous statute bill, which undermined the PSC’s constitutional functions and powers.
The judge said that the amendments ought to have been referred to the relevant departmental committee responsible for the public service, with sufficient opportunity for public participation.
“The amendment undisputedly aimed at changing a long standing constitutional, statutory, public policy and practice that the staff of the Attorney-General are part of Civil Service under the powers and functions of the Public service Commission,” he said.
The judge said that the Attorney-General had failed to refute the evidence that the entire amendment was based on the misleading proposition in the Memorandum of Objects and Reasons that the Attorney-General was an independent office, despite this not being listed in Chapter 15 of the Constitution.
“The amendments inherently breached the constitutional prescription on independent offices and commissions by suggesting and proceeding on a Memorandum of Reasons and Objects that the Office of the Attorney-General was an independent office to be delinked from the constitutional mandate of the Public Service Commission, whereas it was not such independent office,” the judge said.
The court directed the PSC to resolve the issues surrounding the promotion of the affected officers at the Attorney-General’s Office within six months.
The PSC was also ordered to investigate, monitor and evaluate the organisation, administration and personnel practices in the Attorney-General’s office, reporting its findings to the court by December 31.
