[2013] KEHC 6360 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

PETITION NO. 263 OF 2013

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BETWEEN

CONSUMER FEDERATION OF KENYA (COFEK)

Suing through its officials namelySTEPHEN MUTORO, EPHRAIM GITHINJI KANAKE and HENRY OCHIENG........................PETITIONERS

AND

PUBLIC SERVICE COMMISSION.............................................1ST RESPONDENT

THE HON. ATTORNEY GENERAL.............................................2ND RESPONDENT

JUDGMENT

Introduction

1. The Petition dated 20th May 2013 seeks the following Orders;

“a)A Declaration that the 1st Respondent's failure to allow public participation and revelations by the Ethics & Anti-Corruption Commission (EACC) in recruitment and recommending to the President for appointment of Principal Secretaries violates Article 10(2)(a)(c) of the Constitution of Kenya, 2010 which provides for participation of the people in good governance, integrity, transparency and accountability and Article 35 of the Constitution of Kenya, 2010 which provides for the right of the people to access important information affecting the nation, was against the letter and spirit of the Constitution of Kenya, 2010.

b)An injunction be and is hereby issued to prevent the implementation of the 1st Respondent's decision to recruit and recommend to the President for appointment of Principal Secretaries without allowing public participation on the recruitment process as provided under Article 10(2)(a)(c) of the Constitution of Kenya, 2010 which provides for participation of the people in good governance, integrity, transparency and accountability and Article 35 of the Constitution of Kenya, 2010.

c)An order compelling the 1st Respondent to forthwith re- start the recruitment process and recommend to the President for appointment of Principal Secretaries competitively, transparently, fairly, through public participation and in an open manner, interview and choose the best candidates for the position of Principal Secretaries within the spirit and meaning of Chapter 6 on leadership and integrity, Article 10(2)(a)(c) of the Constitution of Kenya, 2010 which provides for participation of the people in good governance, integrity, transparency and accountability and Article 35 of the Constitution of Kenya, 2010 which provides for the right of the people to access important information affecting the nation.

d)Any other or further remedy that the Honourable Court shall deem fit to grant.

e)An order that the Respondents do pay the costs of this Petition.”

Case for the Petitioner

2. In the Supporting Affidavit sworn on the same day and in Submissions by learned counsel for the Petitioner, the Consumer Federation of Kenya, the following issues are raised;

i)That on 8th February 2013, 1st March 2013 and 11th April 2013 respectively, the 1st Respondent placed advertisements in Local daily newspapers calling for applications for the positions of Principal Secretary in the Public Service.

ii)That contrary to the Petitioner's expectations, the 1st Respondent failed to publish for public consumption the list of applicants after each advertisement and the eventual details of all applicants.

iii)The 1st Respondent published the list of applicants who had been shortlisted but failed to publish the names of the applicants whose names were forwarded to the President for appointment under Article 155(3) of theConstitution.

iv)The 1st Respondent prior to submission of the names of successful applicants failed to conduct their interviews in public and instead chose to do so in camera contrary to Article 10of the Constitution which provides for inter-alia, public participation as a principle of governance.

v)The 1st Respondent denied sitting Permanent Secretaries an opportunity to apply for and be interviewed for the positions that they are currently holding contrary to Article 236 of the Constitution.

vi)The 1st Respondent ignored the protestations of the Ethics and Anti-Corruption Commission on the lack of suitability of some of the applicants who were being investigated for inter-alia the offences of abuse of office and corruption.

vii)That the conduct of the 1st Respondent with regard to the whole process was unconstitutional, unjustified, unlawful capricious, unreasonable, irrational, malicious, biased, unilateral, made in bad faith and ought to be set aside in the public interest.

3. The Petitioner relied on the following decisions in support of its case;

i) Petition No.278 of 2011 – Nairobi Law Monthly vs Kengen & Others

ii) Petition No.229 of 2012 – Trusted Society of Human Rights Alliance vs Attorney-General & Others

I will revert to the decisions and their applicability or otherwise to the matter at hand.

Case for the Respondent

4. The 2nd Respondent did not participate in the proceedings save that the same Counsel appeared for both Respondents. On its part, the 1st Respondent filed a Replying Affidavit on 23rd May 2013 and its case as set out therein and in Submissions by counsel is as follows;

That in exercising its mandate under Article 155(3) of the Constitution, the procedure to be followed by it has not been defined and so it followed what it termed as “the normal procedure” for doing so. That procedure, it argues, involved the placement of the initial advertisement calling for applications, then a second and third advertisements for the same purpose before commencing the shortlisting of the applicants who met the criteria prior to interviews being conducted.

As to why it placed three advertisements in the newspapers and its website, the 1st Respondent has offered the explanation that it did so to allow as many candidates as possible to apply for the position and also to ensure that by the time the interviews were conducted, the structure of Government would have been clarified and its recommendations to the President would be made with that fact in mind.

5. Regarding the fact that the interviews were not conducted in public, the 1st Respondent's answer is that there is no such requirement in law and that it had sought and received comments, complaints and views from the public regarding the applicants to be interviewed and that all the issues gathered during that exercise were put to the interviewees and their responses document in video form for record purposes.

6. In any event, that the successful candidates would still require approval by the National Assembly before appointment and that process is another forum for the public to participate in the exercise of picking suitable persons for the office of Public Secretary.

7. On the complaint about the ethical suitability of some candidates, the 1st Respondent has responded by stating that it is in touch with the Ethics and Anti-Corruption Commission for specific details of the on-going investigations about some applicants but the information has not yet been availed to it.

8. The 1st Respondent has also made the point that it decided not to publish the names of all the 2,088 applicants in the daily newspapers but published them in its website which was a cheaper and sufficient method of publicising the same.

9. Lastly, that the process has not been completed since the President and the National Assembly are yet to perform their constitutional function and therefore the Petition is premature and should be dismissed with costs.

Determination

10. Having reflected on the issues raised above, my opinion is as follows;

First, Article 155provides that;

“(1) There is established the office of Principal Secretary,which is an office in the public service.

(2) ...

(3) The President shall—

(a) nominate a person for appointment as Principal Secretary from among persons recommended by the Public Service Commission; and

(b) with the approval of the National Assembly, appointPrincipal Secretaries.

(4) ...

(5) ...”

The above Article merely seeks that the 1st Respondent should “recommend” the appointment of persons to the office of Public Secretary. It does not “appoint” nor does it “approve” the appointments made as would seem to be the Petitioner's argument. The role of the 1st Respondent is important but only one in a chain of events.

11. The Petitioner had no answer to the 1st Respondent's assertion that in executing its mandate above, there is no requirement in Law that it should conduct all interviews in public or publicise (in newspapers) the names of all persons who have applied for the position of Public Secretary. It is also not denied that the 1st Respondent publicised all that information in its website and at paragraphs 10 and 18 in the Replying Affidavit of Alice Atieno Otwala, the point is made that the 1st Respondent regularly briefed the public in Press Conferences as to the procedure being used in conducting the interviews. It has also not been denied that the proceedings were video recorded and that any person, including the Petitioner was at liberty to invoke Article 35 of the Constitution and procure the information contained therein – see the Nairobi Law MonthlyCase(Supra) for an exhaustive discussion on the Law in that regard.

12. The Petitioner at paragraph 3 of the Supporting Affidavit of Stephen Mutoro, its Secretary-General, has made the point that the 1st Respondent is funded by taxpayers and it is not surprising that it (the Petitioner) has no answer to the 1st Respondent's assertion that publicising the list of all applicants was done cheaply in its website and not by the now popular but expensive publication in daily newspapers. How can the Petitioner in any event deny that there is need to secure public funds and that more and more institutions of governance are relying on the interest to send useful information about its activities.

13. In any event, I accept the 1st Respondent's explanations above as reasonable and regarding Article 10 of the Constitution, one of the national values and principles of governance enshrined therein is that of “the rule of Law, democracy andparticipation of the people”. The Petitioner has latched on to the phrase “participation of the people” in a selective and selfish manner. I have said that there is no express requirement that “participation of the people” should be read to mean that “the people”must be present during interviews but taken in its widest context that their in-put is recognised. There is no answer to the 1st Respondent's assertion that it called for, and received, information regarding the applicants and it used it during the interviews. That is sufficient participation, in my view. I am aware that the Judicial Service Commission for example opens most of its interviews to the public but that is because at paragraph 10(5) of the First Schedule to the Judicial Service Act, the law proves that;

“All the interviews [for Judges] shall be conducted in public”

No such express obligation is imposed on the 1st Respondent and even in the case of the JSC, paragraph 9(c) and (d) specifically emphasize that “any information at any of the applicants … shall be confidential.”

The 1st Respondent, it is obvious to me, exercised its discretion rationally when it chose to keep all information from the public as confidential but put it to the applicants for their comments to be taken into account when making its final decision regarding them.

14. In any event, the “people” are represented in the National Assembly and that is why Chapter Seven of the Constitution is titled, “Representation of the People”and so too, Article 1(2) of the Constitution has deep meaning. It provides that “the people may exercise their sovereignty directly or through their democratically elected representatives”. In the present case there is opportunity for a second time for the people to participate indirectly in raising issues, good or bad, about the persons recommended for appointment because Parliament, before approving any applicant will scrutinise their suitability for the office of Principal Secretary.

15. Further, Article 249(2)(b) of the Constitution provides that Commissions (including the 1st Respondent) shall be “independent and not subject to direction or control by any person”.

How can this Court or the Petitioner decide to direct the 1st Respondent in the absence of any express provision of the Constitution of Law that it has flouted. If it has, in its collective wisdom, decided on a procedure for interviews which may not meet the Petitioner's favour but is otherwise lawful and reasonable, how can this Court decide otherwise?

16. Turning to the issues raised by the Ethics and Anti-Corruption Commission (EACC) regarding pending investigations about some applicants, sadly, the letters dated 29th April 2013 and 30th April 2013 are so vague as not to warrant further comment. The two letters are addressed to the Secretary of the 1st Respondent by the Secretary of EACC. It lists a number of applicants but has no details of the nature of investigations against them, the status of those investigations and in fact seems to cast doubt about all other applicants. I say this because, for the applicants who it says have no pending investigations, the letter ominously states as follows;

“Please be further advised that absence of any ongoing investigations is not a guarantee of absolute integrity of an applicant.”

Faced with the above information, where is the fairness of any decision to refuse to interview a person because either he is under some vague investigations and even if he is not, may well not be a person of integrity? Who then can ever be a person of integrity? The Trusted Alliance judgment popularised the phrase “unresolved issues”. What unresolved issues can be discerned from a vague statement of pending investigations if looked at in the context of the venerable principle of “innocence until proven guilty”? In the case before me, it is obvious that neither the 1st Respondent and this Court can seriously hold anything against any of the applicants on the basis of the vague letters from EACC.

A Court cannot and should not condemn a party on the basis of suspicious generalities which have not been carefully crafted to enable the party under attack respond comprehensively to the allegations of lack of integrity.

17. Other issues raised in the Petition including the issue of sitting Permanent Secretaries do not require more than the following answer; no names were supplied, no evidence was tendered in support of the complaint and the statement from the Bar that“they are fearful of disclosing their identities” is not sufficient to warrant any finding by this Court.

18. Lastly, this Court has previously stated the circumstances under which it can interfere with the decisions of other constitutional bodies in the nominations and appointments to public offices. In Trusted Society of Human Rights Alliance (supra), it stated thus;

“The constitutional standard emerging from these cases, which we now adopt, is that the Court is entitled to review the process of appointments to State or Public Offices forprocedural infirmities as well as for legality. A proper review to ensure the procedural soundness of the appointment process includes an examination of the process to determine if the appointing authority conducted a proper inquiry to ensure that the person appointed meets the constitutional requirement. The absence of any evidence that such an inquiry was conducted, or, the availability of evidence that such an inquiry was, in fact, not conducted, would lead to the conclusion that the procedural aspect of this constitutional test have not been satisfied. Additionally, the Court must review the appointment decision itself to determine if it meets the constitutional threshold for appointment. The test here is one of rationality; can it besaid that the appointing authority, after applying its mind tothe constitutional requirements, reached a rational conclusion that the appointee met the constitutional criterion? While the appointing authority has a sphere of discretion and an entitlement to make the merit analysis and determination of the question whether the appointee actually meets the constitutional creiteria, Courts will review that determination where, rationally, a reasonable person would not have reached that determination. The test, then, is one of reasonableness; substantively, the Courtwill defer to the reasonable determination of the appointing authority that a proposed appointee has satisfied the constitutional criterion. Where such a determination is unreasonable or irrational, however, the Court will review it. To this extent, therefore, the constitutional review is not for error but for legality.” (Emphasis mine)

19. I adopt the test of rationality and legality as opposed to speculation and the premature invocation of the Constitution as the Petitioner has done in this case.

20. Nothing more needs to be said. The Petition before me is dismissed. I shall however make no orders as to costs.

21. Orders accordingly.

DATED, DELIVERED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE, 2013

ISAAC LENAOLA

JUDGE

In the presence of:

Patrick – court clerk

Mr. Kaumba for Respondent

No appearance for Petitioner's

Order

Judgment duly delivered.

ISAAC LENAOLA

JUDGE

4/6/2013

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