[2016] KEHC 8095 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CONSTITUTIONAL & HUMAN RIGHTS DIVISION

PETITION NO. 61 OF 2016

BETWEEN

FELIX KIPRONO MATAGEI................................…............................PETITIONER

VERSUS

HON. ATTORNEY GENERAL...................................................1ST RESPONDENT

CABINET SECRETARY, STATE MINISTRY OF

EDUCATION, SCIENCE AND TECHNOLOGY.......................2ND RESPONDENT

CHIEF OF STAFF AND HEAD OF PUBLICE SERVICE.........3RD RESPONDENT

PROF. HENRY THAIRU MOSES.............................................4TH RESPONDENT

JUDGMENT

Introduction

1. The Petitioner who describes himself as a “private citizen” brought this Petition in the public interest and claimed to have so acted in defence of the Constitution pursuant to Article 3(1) of the Constitution.

2. The Petitioner has sued the 1st Respondent pursuant to Article 156 of the Constitution in his capacity as the principal legal adviser to the government. The 2nd Respondent is a state office. The 2nd Respondent is the Cabinet secretary responsible for both basic and higher education while the 3rd Respondent is a public officer. He is the Chief of Staff and the head of the public service.

3. The Petitioner has outlined a litany of Articles of the Constitution in the Petition. The Petition itself briefly involves the appointment and continued occupation by the 4th Respondent as the Chairman of the Commission for University Education (“the CUE”), a statutory state commission established under the Universities Act, 2012. The 4th Respondent was appointed as chairman of the CUE by the 2nd Respondent in 2014.

4. The Petitioner claims that the appointment and continued occupation of office by the 4th Respondent violates and offends Article 73 of the Constitution. The Petitioner consequently seeks the following reliefs:

a) A declaration that the 4th Respondent acts and/or omissions in serving in two capacities is contrary to Article 73, and 249 of the Constitution of the Republic of Kenya and is therefore null and void

b) An order restraining the 4th Respondent from discharging his duties as the Chairperson of the Commission of University Education.

c) Costs of this Petition.

d) Or that such other orders as this Honourable Court shall deem just.

Background facts

5. The background to the Petition is relatively clear and hardly generates any controversy. The story may be reprised, from the affidavit in support of the Petition and the Replying Affidavit by the 4th Respondent, as follows.

6. The 4th Respondent was on 13th January 2014 through Gazette Notice Number 184 of 2014 appointed as the chairperson of the CUE for a period of four (4) years effective 10th December 2013. Five other individuals were also appointed as members of the CUE.

7. Coincidentally, in January 2014 Kenyatta University, one of Kenyans public universities that commands perhaps the largest student population, also established an entity known as the Kenyatta University Consultancy Service Unit (“the KUCSU”). The 4th Respondent who was a faculty member with Kenyatta University was appointed as Director of KUSCU.

8. Nearly two years later in July 2015, the 3rd Respondent through a circular letter laid down the state policy which prohibits serving and active public officers from serving as independent board members or directors of parastatals, state corporations and public institutions. A second circular letter issued by the 3rd Respondent on 5th January 2015 reiterated the policy and urged for its enforcement by the 1st Respondent and all Cabinet Secretaries.

9. At the time of his appointment as chair of the CUE, the 4th Respondent was midway through his faculty contract with Kenyatta University. The contract was later to be renewed for another two years in 2015. The 4th Respondent continued to be a director of KUCSU. He also continued as the chairman of the CUE, prompting the Petitioner to rush to court.

Petitioner’s case

10. The Petitioner’s case is that the 4th Respondent failed to declare his conflict of interest in holding the two positions of director/ faculty at Kenyatta University of the one hand and chairperson the CUE. Additionally, the Petitioner contends that in the eyes of the public the 4th Respondent will be seen to favour his original employer- Kenyatta University. According to the Petitioner the provisions of Article 73 has not been followed. The Respondents have also failed in their duty of upholding the independence of the commission contrary to Article 249 of the Constitution. The Petitioner contends that the constitutional criteria could only be met if the 2nd Respondent ensured that any appointee to a state corporation is not conflicted by holding two public offices.

Respondent’s case

11. While the 4th Respondent filed a Replying Affidavit, the 1st, 2nd and 3rd Respondents only filed grounds of opposition.

12. The 1st, 2nd and 3rd Respondents contended that the Petitioner has not outlined with precision how the provisions of the Constitution were or have been violated. The said Respondents also contended that the Petitioner has not shown how both the Universities Act 2012 and the Leadership and Integrity Act, 2012 have been violated by the Respondents.

13. While admitting that the 4th Respondent is a public officer, the 1st, 2nd and 3rd Respondents contended that the 4th Respondent’s appointment was lawfully and procedurally effected. Additionally, it was contended that the 4th Respondent’s independent membership or directorship in any institution was duly exempted by the 3rd Respondent.

14. The 4th Respondent’s case followed much the same script as the other Respondents’ case. The 4th Respondent additionally denied that his position as Director of KUCSU raised any conflict. In this latter respect, the 4th Respondent stated that his tasks at both CUE and KUCSU did not clash. The 4th Respondent also denied drawing possible conflict; the 4th Respondent stated that CUE’s function entails mainly promoting university education as distinct from KUCSU function which involves managing Kenyatta University’s internal affairs. The 4th Respondent finally contended that all decisions at CUE are corporate and made by a majority of the Board Members and not the Chairman individually or solely.

Arguments in court

15. Mr. Ham Lagat appeared for the Petitioner while the 1st, 2nd and 3rd Respondents case was urged by Mr. Maurice Ogosso. The 4th Respondents case was argued by Mr. Patrick Rono. The parties also filed written submissions.

16. The Petitioner submitted that by the 4th Respondent holding office as chairperson of the CUE and also holding office as a director of KUSCU and effectively getting involved in the operations and consultancy services of one of the public universities that the CUE is expected to regulate there was obvious conflict and vested interest. According to the Petitioner such conflicted and vested interest negated the principles enshrined in Chapter Six of the Constitution which demanded top leadership and integrity. In counsel’s submissions, the 4th Respondent in holding the two offices would only lead to public mistrust and distrust as well as a wane in public confidence in the two offices.

17. Mr. Lagat submitted further that a party could never be a judge in his own cause and neither could one regulate himself. In the instant case, added Mr. Lagat, the 4th Respondent was a public officer deeply engaged with Kenyatta University and was again engaged deeply with CUE. The 4th Respondent was holding two public offices contrary to the spirit and intention of both Chapter six of the Constitution and other statutory provisions, so submitted counsel.

18. Relying on the case of John Okelo Nayafwa vs. Independent Electoral & Boundaries Commission & 2 others [2013]eKLR, Counsel stated that the 4th Respondent was holding two gainful employments. Additionally, the Petitioner relied on the African Charter on Values and Principles of Public Service and Administration for the proposition that a public officer cannot be employed to serve in another public office whose functions are separate from his existing duties unless expressly required by law and only when not drawing additional salaries.

19. The Petitioner’s counsel also relied on the case of David Kariuki Muigua –v- Attorney General & Another HCCP No. 161 of 2011for the proposition that appointments to public office should “be guided by the national values and principles set out in Article 10 of the Constitution, in particular participation of the people, equity, good governance, integrity, transparency and accountability”. Accordingly, concluded the Petitioners counsel, holding two public offices and drawing salaries was unconstitutional and illegal.

1st, 2nd and 3rd Respondents’ submissions

20. Mr. Ogosso on behalf of the first three Respondents contended that the 4th Respondent was not holding two public offices. Counsel also stated that no constitutional provision had been violated as the 4th Respondent’s appointment had been sanctioned by the Head of Public Service, the 3rd Respondent, even if the court was to find that the 4th Respondents directorship at KUCSU and employment at Kenyatta University was a public office appointment.

4th Respondent’s Submissions

21. Counsel for the 4th Respondent submitted that the Petition was imprecise and unclear. Counsel stated that there was no conflict in the 4th Respondent holding the position of chairperson of the CUE and director of the KUCSU as the latter’s main purpose is not to promote university education. Counsel stated that KUCSU does not discharge any public duties. Consequently, the 4th Respondent stated that there was no violation of Article 73 of the Constitution or of any circular letters issued by the 3rd Respondent.

Discussion and Determination

22. I have carefully read the Petition as well as the Respondents’ response to the Petition. I have also reflected on the parties’ respective submissions.

23. The core issue raised by the Petitioner is whether the appointment of the 4th Respondent as chairman of the CUE and therefore a public officer offended Articles 73 and 249 of the Constitution as the 4th Respondent was already in public service with Kenyatta University.

24. There are other corollary issues as to whether the Petition meets the competency threshold of reasonable precision and whether the appointment of the 4th Respondent was in violation of any state policy contained in any circular letter(s).

25. I would dispose of the corollary issue as to the competence of the Petition very shortly in the next two paragraphs.

26. I was able to identify the core issue raised in the Petition quite painlessly and with ease. The pleadings were relatively clear. The Petitioner contests the appointment of the 4th Respondent as chairperson of the CUE when the 4th Respondent is still in the employ of both Kenyatta University and KUCSU. The Petitioner contended that the appointment was in violation of both Articles 73 and 249 of the Constitution. The reasoning by the Petitioner was that the appointment crossed the line barring conflict of interest. The Petitioner also stated that the appointment also abused the government’s policy on public individuals holding two public offices. That is how the court understood the Petitioner’s grievances and it would appear that the Respondents also so understood the Petition and were able to respond in detail.

27. The court in Anarita Karimi Njeru vs. Republic [1976-80] KLR 1272as cited with approval in Mumo Matemu vs. Attorney General & 5 Others [2014] eKLRwas clear that constitutional petitions ought to be crafted with reasonable precision. The reasonable precision was intended to ensure the respondent as well as the court understands the petitioner’s case with ease. I hold the view that the instant Petition was reasonably precise. The court as well as the Respondent could, and indeed did, appreciate and understand the exact nature of the Petitioner’s case of public officers holding two public service jobs.

A question of two public offices

28. The core issue centres on the stated fact that the 4th Respondent is a public officer who holds two public offices.

29. Article 260 of the Constitution defines a public officer as:

(a) Any state officer; or

(b) Any person, other than a state officer who holds a public office

A state officer on the other hand is, under the Constitution, a person who holds a state office. While the Constitution almost exhaustively lists state offices, public office is generally defined by the Constitution to mean:

“an office in the National Government, a County Government or the Public Service, if the remuneration and benefits of the office are payable directly from the consolidated fund or directly out of money provided by Parliament”.

‘Public service’ is itself defined as the collectivity of individuals other than state officers, performing a function within a state organ. Finally a “state organ” is defined as a commission, office agency or other body established under the Constitution.

30. Various other pieces of legislation also define who “a public officer” and what “a public office” is. The statutes include the Public Officers Ethics Act [Cap 183], the Political Parties Act No. 11 of 2011, Leadership and Integrity Act (Cap 182) and Public Service (Values and Principles) Act No. 1A of 2015. They ascribe the meanings to the definition given under Article 260 of the Constitution.

31. In Fredrick Otieno Outa vs. Jared Odoyo Okello SCK Petition No. 6 of 2014 [2014]eKLR, the Supreme Court having considered some of the statutory definitions of ‘public officer’ concluded as follows:

“Strictly speaking, the proper meaning of ‘public officer’ ... is that embodied in Article 260 of the Constitution... The different definitions in other statutory provisions, such as those enumerated earlier on, ought not to take precedence over the said constitutional provisions. And thus the proper meaning of “public officer”- currently is ; (i) the person concerned is a state officer; or (ii) any other person who holds “public office” – an office within the National Government, County Government or Public Service; (iii) a person holding such an office, being sustained in terms of remuneration and benefits from the public exchequer .(emphasis)

32. Out of complete deference to the Supreme Court and the constitutional compulsion under Article 163(7), the interpretation given by the Supreme Court must bind me and be applicable for purposes of the instant Petition. See also the cases of Kenya Tea Development Agency Ltd vs. Ismael Ombati Ochieng & 9 Others [2015] eKLR.

33. The 4th Respondent is engaged both by Kenyatta University and its self-evolved unit KUCSU as lecturer and director respectively. The 4th Respondent is also engaged as the chairperson of the CUE.

34. Kenyatta University, it is not contested, is a public university duly chartered under the Universities Act, No. 42 of 2012. It draws its capitation and funding out of, inter alia, funds provided by Parliament. KUCSU is said to be an independent unit of Kenyatta University. It is unclear whether it is self-sustaining or generates its own funds. From its agreed mandate of providing a consultancy platform for the staff of Kenyatta University, I have little doubt that it generates its own funds besides any funds which trickle from its parent institution being Kenyatta University. There was however no denial that it is a unit within Kenyatta University.

35. The CUE is also a creature of statute, off the Universities Act, No. 42 of 2012. It is a body corporate established to promote the objectives of university education and regulate university education in Kenya, amongst other functions. Under Section 30 of the Universities Act, the CUE draws its funding from monies allocated by Parliament besides any fees/charges it generates for services rendered.

36. Universities recruit and remunerate their own staff and faculty. The CUE also recruits and remunerates its own staff and officers, save for its chairperson. The members of the CUE (the Commissioners as well as chairperson) are appointed by the Cabinet Secretary in charge of higher education following a competitive process. The CUE members draw their remuneration or benefits, which includes allowances from the CUE itself. The CUE members serve for a maximum of two terms of four years each.

37. As the employees of public universities, including Kenyatta University, get their remuneration and benefits paid by the university which in turn draws funds from Parliament’s allocation of public funds, by the better reason, employees of public universities whether on contract, full-time or part-time basis are public officers. The same would apply to units and organs established and run by the public universities, like KUCSU in this case. Directors of such units, are effectively remunerated or provided with benefits off monies drawn from the public exchequer with Parliament’s approval. Such persons would qualify to be public officers. The same position would apply to CUE members. It matters little that one serves on contract, part-time or temporary basis. S/he becomes a public officer within the third category emphasised by the Supreme Court in the Fredrick Otieno Outa vs. Jared Odoyo Okello (supra)when he is sustained in terms of remuneration and benefits from the public exchequer. The service rendered by the individual especially if public in nature also goes along way to add to the fact that one is a public officer.

38. I have no doubt that members of CUE and staffers of public universities and units within such universities sustained by the university’s funds are public officers.

39. The 4th Respondent in both respects is a public officer. He holds public office within Kenyatta University as a lecturer and also a director of KUCSU. He also holds a public office as chairperson of CUE.

40. The Petitioner contends that by holding two public offices, the 4th Respondent with the 2nd and 3rd Respondents’ connivance is in violation of Article 73 of the Constitution. Article 73 deals with leadership and integrity on the part of state officers and various values and principles. The Article states as follows on leadership and integrity:

“(1) Authority assigned to a State officer—

(a) is a public trust to be exercised in a manner that—

(i) is consistent with the purposes and objects of this Constitution;

(ii) demonstrates respect for the people;

(iii) brings honour to the nation and dignity to the office; and

(iv) promotes public confidence in the integrity of the office; and

(b) vests in the State officer the responsibility to serve the people, rather than the power to rule them.

(2) The guiding principles of leadership and integrity include—

(a) selection on the basis of personal integrity, competence and suitability, or election in free and fair elections;

(b) objectivity and impartiality in decision making, and in ensuring that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices;

(c) selfless service based solely on the public interest, demonstrated by—

(i) honesty in the execution of public duties; and

(ii) the declaration of any personal interest that may conflict with public duties;

(d) accountability to the public for decisions and actions; and

(e) discipline and commitment in service to the people.”

41. Also of relevance is Article 232 which outlines the values and principles of public service. Article 232 of the Constitution states as follows:

232. (1) The values and principles of public service include—

(a) high standards of professional ethics;

(b) efficient, effective and economic use of resources;

(c) responsive, prompt, effective, impartial and equitable provision of services;

(d) involvement of the people in the process of policy making;

(e) accountability for administrative acts;

(f) transparency and provision to the public of timely, accurate information;

(g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions;

(h) representation of Kenya’s diverse communities; and

(i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of––

(i) men and women;

(ii) the members of all ethnic groups; and

(iii) persons with disabilities.

(2) The values and principles of public service apply to public service in—

(a) all State organs in both levels of government; and

(b) all State corporations.

(3) Parliament shall enact legislation to give full effect to this Article.”

42. The two Articles ought to be read together for a more holistic appreciation of the values and principles of public service expected of State and public officers.

43. It is clear that public officers are expected to ensure public confidence is maintained in the public service generally and in the integrity of their respective offices individually. Public officers must also exercise objectivity and impartiality in decision making and ensure that their decisions are not influenced by favouritism or other improper motives. Their personal interest must also not conflict with their public duties. Additionally, the national values and principles of governance enshrined under Article 10 of the Constitution ought to guide the public officer all the times. These include accountability, transparency, integrity, equality and equity. The same principles are partly reiterated under Article 232 of the Constitution and additionally expounded by the Public Service (Values and Principles) Act No. 1A of 2015.

44. The Petitioner contends that the holding of two public offices by the 4th Respondent offends the very principles outlined in Articles 10 and 73 of the Constitution. It is stated that there is a conflict of interest.

45. My view and I so hold is that the holding of two public offices simpliciter does not result in a violation of Articles 10 or 73 or 232 of the Constitution. Each case must be viewed on the basis of its own unique facts. It is possible for a public officer to hold two or even more offices where a statute expressly allows and roles clearly defined or where there is a clear co-relation between the two offices and no possibility of conflict of interest arises or is foreseeable.

46. I now turn to the question whether the 4th Respondent is specifically in a position of conflict of interest or potential conflict of interest.

47. From 1874, the law or rule founded on the highest and truest principles of morality has been that a person in whom trust or responsibility has been placed must never act so as to have his interest in the fore of others: see Packer vs. McKenna [1874] 10 LR 96. That principle has survived the test of times and still holds well nearly a century and a half later. Undoubtedly, situations of conflict of interest can only lower public interest and public confidence in systems as well as institutions.

48. The Petitioner’s contention is that the 4th Respondent’s position both at Kenyatta University and at KUCSU puts him in a position of conflict when he performs his functions as a chairperson of the CUE. The Petitioner stated that the 4th Respondent is involved in managerial duties at the university. The 4th Respondent does not deny the fact of being engaged in managerial duties at KUCSU but denies the possibility of his duties at both Kenyatta University and at KUCSU clashing with those at the CUE, where he additionally contends that he can influence no decision.

49. A quick review of the functions of the CUE would reveal that under Section 5 of the Universities Act it:

a. Promotes the objectives of university education

b. Advises the Cabinet secretary on policies relating to university education

c. Promotes, advances, publicises and sets standards relevant in the quality of university education, including the promotion and support of internationally recognised standard

d. Monitors and evaluates the state of university education systems in relation to the national development goals

e. Licenses any student recruitment agencies operating in Kenya and any activities by foreign institutions

f. Develops policy for criteria and requirements for admission to universities

g. Recognises and equates degrees, diplomas and certificates conferred or awarded by foreign universities and institutions in accordance with the standards and guidelines set by the CUE from time to time

h. Undertakes or causes to be undertaken, regular inspections, monitoring and evaluation of universities to ensure compliance with the provisions of the Universities Act or any regulations made under the Act

i. Inspect universities in Kenya on regular basis

j. Accredit universities in Kenya

k. Regulate university education in Kenya

l. Accredit and inspect university programmes in Kenya

m. Promote quality research and innovation

50. It is clear from the above functions that certain of the functions would entail the making of decisions directly affecting the 4th Respondent’s employer Kenyatta University. In particular those itemized under Section 5(1) (h), (i), (j),(k) and (l) are of relevance. These would rank as functions and decisions which would have to be university-specific rather than general decisions all universities. The possibility and potential of conflict of interest would in such a case be real and not merely apparent. Where the decision is to apply generally to all universities, it may be argued that the conflict may be nominal if not non existence, even where the concerned regulatory individual is an employee of a university institution.

51. The Constitution dictates and demands objectivity from public officers under Article 73(2)(b). It also demands that public officers be not influenced by favouritism or other improper motives in their decision making under Article 73(2)(b). The Constitution also demands impartiality of public officers under Article 232(1)(c). Where there is a real possibility of conflict of interest or of the potential of conflict of interest, then the very principles enshrined under Articles 10, 73 and 232 of the Constitution are unlikely to be met. Public officers, in my view, whose duties invite the potential of conflict of interest are unlikely to inspire public confidence in their offices or the services they offer.

52. There appears to exist a likely improper and substantial conflict of interest by the 4th Respondent being in substantial association with Kenyatta University, the same institution which is supposed to be regulated and substantially superintended by CUE which is headed by the 4th Respondent as the chairperson. Some of the programmes the 4th Respondent undertakes or tutors at Kenyatta University may very well come before him for review as he chairs the CUE. It matters little that the 4th Respondent contends that the decision making at CUE is by a whole majority board. It is not lost to the court that the 4th Respondent may depending on any confirmed quorum of the CUE hold a decisive or casting vote.

53. I am satisfied that the 4th Respondent’s dual role places him in a conflicted position and that may not help promote or advance the constitutional design as detailed under Chapter 6 and promoted by among other statutes the Public Service (Values and Principles) Act No. 1A of 2015. An employee or officer of a regulator should ordinarily also not be an employee or officer of the regulated.

54. The 1st Respondent argued that the 4th Respondent had obtained a direct exclusion from the 3rd Respondent. Evidence of such express exclusion was however not availed to me. I am not convinced that the 3rd Respondent approbated in the 4th Respondent’s dual appointment. In any event, I am not persuaded that the 3rd Respondent either through an edict or circular letters can actually override express constitutional provisions which preach against partiality, favouritism and non-objectivity. These are all negative values likely to exist where it is shown that the potential of conflict of interest is real.

Conclusion

55. It follows that while I find that it is possible for a public officer to hold two public offices, where the law allows or where the two offices correlate, I am satisfied that in the circumstances of the instant case the 4th Respondent cannot continue to be an employee of Kenyatta University and also be the chair of the CUE. He is likely to be perceived as non-impartial and partisan by most stakeholders in the higher education sector as well as by the public generally. The likelihood that where the CUE in the performance of its duties engages Kenyatta University, the 4th Respondent may look the other way is real.

56. The question has had to be entirely objective as the answer is dependent the question is whether a reasonable minded person with full facts would view it improper and wrong for the 4th Respondent to continue holding on to the two positions. The only subjective element would be a decision by the conflicted not to continue in either or both of his conflicted positions.

Reliefs

57. Is the Petitioner entitled to the orders sought?

58. I have determined and concluded that the 4th Respondent should not be holding two public offices which do not co-relate. There is little clarity on how the 4th Respondent was appointed almost simultaneously to both positions. I however do not think that this was a case of wilful blindness or that 2nd Respondent deliberately overlooked the possibility of conflict of interest .The renewal of the 4th Respondent’s contract as a lecturer in 2015 on the other hand only helped to heighten the conflict. The 4th Respondent should not be serving in the two positions, not because he is not qualified to serve in either but simply due to the fact that he is conflicted and that is not in the spirit of the Constitution let alone values of public service.

59. The objective decision has been made. A subjective decision must also now be made by the 4th Respondent. He is qualified to serve in both positions but must, due to constitutional and statutory compulsions, only serve in one. He must make the choice. Failure to do so will see the court make the choice. In the circumstances, it would be appropriate to fashion appropriate reliefs.

Disposition

60. For all the reasons stated above, I find that the Petition has merit and would allow the petition on the following orders and terms:

a. There shall issue a declaration that the 4th Respondent by serving in two public offices as a lecturer/employee of Kenyatta University of the one hand and chairperson of the Commission for University Education of the other hand does so contrary to the provisions of Articles 10,73(2) and 232 of the Constitution.

b. The 4th Respondent shall within ten (10) days of the date of this order being served upon him or upon the Commission for University Education formally tender his resignation from either the position of lecturer and employee of Kenyatta University and any of its units including the Kenyatta University Consultancy Services Unit OR as chairperson of the Commission for University Education.

c. The letter of resignation shall be filed in court and with the Deputy registrar of the court within seven days of the date of resignation.

d. In default of either (b) or (c) above, the appointment of the 4th Respondent as the chairperson of the Commission for University Education shall stand and be deemed null and void, with the 2nd Respondent at liberty to then immediately commence the process of appointing another chairperson of the Commission for University Education .

61. This having been one of the now many common public interest litigation cases, I am inclined not to make an order on costs in favour of the successful Petitioner. Instead, each party will bear its own costs.

Dated, signed and delivered at Nairobi this 30th day of September, 2016.

J.L.ONGUTO

JUDGE