Health Cabinet Secretary Susan Nakhumicha violated the constitution by promoting 59 junior officers to senior management positions in the ministry, Public Service Commission(PSC) has told the High Court.
According to the commission, the CS usurped constitutional and statutory powers and functions of the authority officers in the Ministry of Health in the said promotions.
"Save for the acting appointment for the position of director general for health Dr Patrick Amoth, the rest of the other appointments done by the CS for health were never approved by PSC. Further, even in cases where such appointments have been approved, appointments can only be made either by the commission or the authorized officers as may be appropriate," the PSC court papers stated.
In an affidavit filed by Remmy Mulati, Deputy Commission Secretary (Corporate Services) the commission adds that the appointments made by the CS are contrary to the law and the approved staff establishment and organisation structure for the ministry.
"The CS has violated the constitution, the PSC Act 2017, PSC regulations 2020 as well the commission delegations instrument of December 14, 2022, issued to the authorized officers," Mulati states.
Mulati further observes that the CS purported to exercise the human resources powers and functions that have been delegated by the commission to the authorized officers in the ministries and state departments contrary to the law.
The affidavit is in response to a case filed by a Nakuru-based doctor Benjamin Magare Gikenyi who has challenged the promotions made by CS Nakhumicha through a memo dated April 19, 2023.
In the memo the CS made 59 promotions of the senior Management team in the ministry, a move Magare says was in total violation of the constitution and various laws.
Magare said that over 50 per cent of the appointees are junior officers.
In what appears to be in support of the petition, the PSC said that it reviewed the disputed memo dated April 19, 2023, by CS Nakhumicha and established that the said memo is unlawful.
"A perusal of the CS for health as contained in the internal memo reveals that all the offices and positions outlined under the state department of public health and professional standards do not exist as they have not been established and approved by the commission," Mulati says.
In addition, the deputy commission secretary says that most of the offices and positions outlined under the state department of medical services do not exist.
As a result, he states that the appointments are unlawful and unconstitutional.
"It is the commission's position that the actions of the CS through the internal memo are unconstitutional, illegal as they constitute a usurpation of the constitutional and statutory powers of the commission," Mulati informed the court.
The commission further states that the CS does not have the legal authority to deploy, transfer or re-designate staff from one state corporation to another.
The matter is pending determination before the Employment and Labour Relations Court in Nairobi.
