A court suspended President William Ruto’s Executive Order which outlines new guidelines on the management of state corporations.
This is after the Law Society of Kenya (LSK) moved to court to challenge the order saying that said guidelines, being statutory instruments, have been made in clear contravention of the Statutory Instruments Act, 2013.
Lawyer Manwa Hosea challenged the executive Number 3 of 2024.
In a gazette notice dated May 24, Ruto ordered that the terms and conditions of service for Board Members and Staff of State Corporations shall be as set out in the 2024 Guidelines on the Management of State Corporations.
He ordered that the 2024 Guidelines on the Management of State Corporations shall and do supersede the guidelines issued in November 2004.
The said executive order seeks to take away the functions of the Public Service Commission (PSC) to the Executive.
“That a Conservatory order is hereby issued suspending the Executive Order No. 3 of 2024 promulgating the Guidelines on the Management and Terms and Conditions of Service for Board Members and Staff of State Corporations, 2024 and further, prohibiting the respondents, their agents and/or any person acting on their behalf form acting or giving effect to the Executive Order No. 3 of 2024 pending the inter partes hearing of this Application,” reads High Court order.
LSK argued the guidelines are a direct usurpation by the Executive of the functions of PSC and establishment of a parallel body under the office of the President.
It is also their argument that the said guidelines have also taken over the regulation of the human resource functions in the public service within State Corporations and Public Universities from PSC and placed them on SCAC contrary to Article 234(2) of the Constitution, the PSC Act and PSC Regulations as well as decided court cases.
“The imminent consequence of not suspending the Executive Order and the Guidelines is that all state Corporations and public universities will be moved to the office of the president and their terms and conditions of service determined and reviewed contrary to the dictates of the Constitution of Kenya, 2010 and the Public Service Commission Act,” reads court papers.
The court directed that the papers be filed and served to the respondents and appear in court for highlighting submissions to the application on June 24, 2024.
LSK claimed that the Guidelines contravene Articles 230 and 234 of the Constitution as they usurp the constitutional functions and powers of the Public Service Commission and the Salaries and Remuneration Commission and given them to the State Corporations Advisory Committee (SCAC) and the National Treasury respectively.
PSC had opposed the guidelines saying they contravene the law.
“The Guidelines are in conflict with the provisions of the constitution and are therefore invalid pursuant to the provisions of Article 2(4) of the Constitution which provides that “any law, including customary law, that is inconsistent with this Constitution is void to the extent of the inconsistency, and any act or omission in contravention of this Constitution is invalid.”
”The Guidelines violate several court decisions that have found that it is only the Commission that has power to establish offices and approve human resource instruments in the public service,” PSC chairman Anthony Muchiri said in a letter May 28 to the head of public service Felix Koskei.
He said the Guidelines make reference to, and rely on, Sections 5(3) and 27 of the State Corporations Act both of which have since been found to be unconstitutional for violating the constitutional mandate of the Commission as provided in Article 234 of the Constitution.
”The Guidelines, having been issued pursuant to Section 7(1) of the State Corporations Act are subject to the provisions of the Statutory Instruments Act which defines statutory instruments.”