ICT Secretary Mr Joe Mucheru at a past event: Cofek has sued him over delayed naming of ICTA boss
The Employment and Labour Relations Court has barred the board of the ICT Authority from re-advertising the CEO position in a suit in which Cofek wants previous interview results released without further delay.
Lady Justice Monica Mbaru has directed that an urgent inter-parties hearing be held on April 26. She directed Cofek to serve the respondents immediately.
In the suit, Cofek has named ICT Cabinet Secretary (1st Respondent), ICT Authority (2nd Respondent) and Attorney General (3rd Respondent) as respondents.
ICT Authority advertised the position in January and September last year to fill the vacancy created when its founding CEO Mr Victor Kyalo was appointed as Principal Secretary at the Ministry of ICT.
Mr Kyalo's ICTA appointment was subject of Cofek High Court petition 144 of 2014 - after he is recruited without competition. He was later confirmed by the board after an advertisement was made.
Cofek argues that the January and September recruitments conducted separately by audit firms KPMG and PWC could not all have been wrong. ICT Secretary Mr Joe Mucheru is yet to respond to Cofek's inquiry of March 16, 2017 regarding the failed appointment.
Here below are the grounds that Cofek based its' case upon;
THAT the appointment of CEO of the 2nd Respondent has historical failures – with the first and only CEO of the 2nd Respondent having been recruited after the Applicant/Petitioner moved to Court under HCCC No. 144 of 2014 (Nairobi)
THAT then, and as at now, the Applicant/Petitioner sued the 1st, 2nd and 3rd The Applicant/Petitioner argued that although the then CEO Mr Victor Kyalo (and current Principal Secretary of ICT and reporting to the 1st Respondent) was "... himself possibly qualified but (he was) a beneficiary of a tainted, skewed, mysterious and illegal process of having been hired without competition and public participation and whose primary loyalty is to the 1st Respondent and 2nd Respondent’s Board and not to the people of Kenya.
THAT the Applicant/Petitioner then, and as at now, argued thus "That no statutory or delegated legislation can purport to take away the supremacy of the actual letter and envisaged spirit of the Constitution of Kenya, 2010 as it shall be null and void to that extent of inconsistency especially as read together with the sovereign power of the people of Kenya under Article 1(1) and Article 2(1)(2) of the Constitution of Kenya, 2010".
THAT it is fair and just to say that the said former CEO of the 2nd Respondent (and now the Principal Secretary of the 1st Respondent) presents a conflict of interest considering that two interviews, including the separate advertisements for the position made out on January 14, 2016 and September 2, 2016 is not yet filled.
THAT sometimes last year or thereabouts, the 1st Respondent did receive names of at least 3 shortlisted candidates for the position of CEO from the then board of the 2nd Respondent.
THAT the 1st Respondent is yet to make the appointments, which is a ceremonial process of picking the first ranked of the forwarded 3 names.
THAT the 1st Respondent is yet to explain why the appointments have not been done. In any case, the 1st Respondent has no power to annul, vary and or disallow such appointments save for procedural integrity reason(s) which can only be authenticated by the competent body and in this case the Ethics & Anti-Corruption Commission.
THAT the 1st Respondent, in a show of impunity, neglected, ignored and or disregarded the need to show cause for his inaction on appointment of the CEO of the 2nd Respondent by his blatant refusal to reply to the formal inquiry of the Applicant/Petitioner as dated March 16, 2017. In the said letter, the Applicant/Petitioner noted that the April recruitment was conducted by a reputable firm of KPMG and the second one held in November 2016 was conducted by yet another reputable firm of PriceWaterhouseCoopers (PWC). The Applicant/Petitioner further invoked provisions of Article 35 and 232 of the Constitution and sought for information from the 1st Respondent and which information has not been forthcoming more than a month later and is unlikely to come. In the event this happens, as it is likely to happen, it will amount to discrimination of shortlisted candidates contrary to provisions of Article 27(4) of the Constitution.
THAT the recruitment does not have credibility and or integrity question considering they were conducted by KPMG and PWC, respectively. In any case, the 1st Respondent is not competent to claim or purport to cancel the appointments on perceived integrity question as long as the interviewing firms and the board of the 2nd Respondent followed the due process.
THAT despite there being many Kenyans willing to sit on the 2nd Respondent’s board, the 1st Respondent has no valid reason other than delaying the results of the said April and November 2016 interviews and deceptively order for third recruitment process with a new board appointment later. This eventuality will cost the country in more (avoidable) wastage of economic resources.
THAT the Respondents must note that huge public resources were used in the stillborn recruitment processed of the CEO of the 2nd Respondent and further; various Kenyans participated in the process and are entitled to be expeditiously informed of the outcome and especially on the shortlisted winners of the process.
THAT the action by the 1st and 2nd Respondents to indefinitely defer the appointment of the CEO of the 2nd Respondent amounts to wastage of public resources, cheating of applicants and discrimination as those expecting the appointing would be made to give up after the indefinite and unlawful wait.
Cofek prayers are;
THAT this Honourable Court hereby orders the 1st Respondent to immediately publicly release results and make appointment of the CEO of the 2nd Respondent as recommended by the Board of the 2nd
THAT this Honourable Court hereby orders the Respondents to publicly declare the actual cost of failed appointment processes on the appointment of the CEO of the 2nd Respondent since 2016
THAT this Honourable Court do make a declaration that the 1st Respondent cannot purport to review, annul and or indefinitely delay procedural appointment of the CEO of the 2nd Respondent as made and or recommended by the board of the 2nd Respondent
THAT this Honourable Court be pleased to bar the 1st and 2nd Respondents from re-advertising the position of CEO of the 2nd
THAT this Honourable Court be pleased to order the 1st Respondent to perform his duty of constituting the board of the 2nd Respondent
THAT this Honourable Court be pleased to bar the Respondents from allowing the CEO of the 2nd Respondent to act in the position for more than 6 months
THAT this Honourable Court be pleased to declare that the 3rd Respondent has failed in its duty to protect the rule of law and defend public interest.
THAT the costs of this application be in the cause.