Thursday, May 23, 2024

Governors have no powers to take disciplinary action against CECs

CEC place is protected against adversarial motion. [iStockphoto]

Governors don’t have any powers to research or take disciplinary motion in opposition to County Govt Committee (CEC) members, the court docket has dominated.

The court docket mentioned Part 40 of the County Governments Act doesn’t ponder a governor suspending or sending on obligatory depart a CEC.

Like different public officers, a CEC can be protected against adversarial motion by the due course of outlined in Article 236 of the Structure.

Employment and Labor Relations Courtroom Choose Stephen Radido mentioned the removing of a CEC from workplace calls for that complaints or allegations are channelled or discover their manner earlier than the county meeting for investigations.

The method includes the county meeting voting on a removing movement and organising a Choose Committee of the County Meeting to research any allegations of incompetence, abuse of workplace, gross misconduct, gross violation of the Structure or every other written regulation, bodily or psychological incapacity or failure to attend conferences of the County Govt.

This got here up in a case filed by Dr Alfred Ndemo Ong’period, who was appointed on November 15, 2022, because the CEC for Commerce, Tourism, Trade, and Advertising and marketing by Kisii Governor Simba Arati.

On December 1, 2023, the governor wrote to the petitioner, directing him to proceed on obligatory depart to facilitate investigations into allegations of gross misconduct, abuse of workplace, gross violation of the Structure, and different written legal guidelines.

Arati cited sections 39 and 76(6) of the County Governments Act whereas issuing the directive to the CEC. On December 28, 2023, the Governor prolonged the obligatory depart by six weeks.

Ong’period wrote to the governor on January 2, 2024, in search of particulars of the alleged violations and abuse of workplace. The petitioner indicated within the letter that if there was no response inside seven days, he would transfer to court docket.

Arati didn’t reply, and the CEC moved to court docket to problem the choice on February 6, 2024.

The petitioner contended that obligatory depart was not offered for underneath the employment regulation of normal utility in Kenya, it was not lawful, and that by dint of Article 47 of the Structure, which ensures the proper to honest administration, he ought to have been given causes for the choice.

In his ruling, the Choose mentioned: “The governor doesn’t have the devices to conduct an investigation. Certainly, the governor within the current case didn’t disclose the instrumentalities he was utilizing, to hold out the purported investigations. The workplace of a governor is just not suited to conduct investigations, whether or not disciplinary or in any other case.”

Justice Radido dominated that the governor didn’t possess any lawful authority to ship the petitioner on obligatory depart or conduct investigations into the allegations underneath the provisions he cited or every other regulation.

“It isn’t doable for an employer to hold out investigations in opposition to an worker, who regardless of accusations of wrongdoing, continues to occupy his/her workplace,” he mentioned

In his Might 8, 2024 ruling, Justice Radido ordered the governor and the County Public Service Board to reinstate Ong’period to his place.

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