Human resource Bill is a power grab and State House mischief

The Human Resource Management Bill (2024) is tragic mischief. Introduced before Parliament by the Ministry of Public Service, it seeks to kill the Public Service Commission (PSC).

It transfers responsibilities of PSC to Chief of Staff and Head of Public Service; that is basically to say to the President. There are many reasons for Kenyans to be worried. First, the PSC is established by Article 248(2) of the 2010 Constitution as an independent commission. It is listed together with other independent commissions like the Kenya National Human Rights and Equality Commission, the Independent Electoral and Boundaries Commission, the Parliamentary Service Commission, the Commission on Revenue Allocation, and the Judicial Service Commission. Others are the Salaries and Remuneration Commission, the Teachers Service Commission, and the National Police Service Commission. Then there are the two constitutional offices of the Auditor General, and the Controller of Budget, established by Article 248(3) of the Constitution.  

Article 249(2)b of the Constitution, read together with Articles 234, and  255(1)h protect the PSC and its functions from the kind of mischief the Bill seeks to introduce. Indeed, the Bill in its attempt to take away power from the PSC to give it to the Chief of Staff makes a clever attempt to amend a referendum matter through the backdoor.

Article 249(2)b of the Constitution states, “The commissions and holders of independent offices are independent and not subject to direction or control by any person or authority. But now here is an effort to place them, and their responsibilities, under the Executive Office of the President. Some of their functions and powers are placed under the Cabinet Secretary for the Ministry of Public Service, and the Principal Secretary for the State Department for Public Service.  

The functions and powers of the PSC are spelt out in considerable detail under Article 234 of the Constitution. And Article 255(h) states that Parliament cannot amend these functions and powers without going through a national referendum, under Article 257 of the Constitution. Why, then, is a brazen effort being made to amend the Constitution in this kangaroo style?  

Amend the Constitution

It is a matter of Executive overreach and power grab. The Bill purports to “provide an overarching framework for the effective management and development of human resources by the national and county governments.” It claims that this will provide “uniform norms and standards in public service in the country.”

In effect, however, the objective appears to be about delegating not just the PSC but, in fact,  all the independent authorities to the Head of Public Service. By just one Act of Parliament, if legislated, the Judiciary, Legislature, County Governments, and all the Independent Commissions and Authorities will come under the direct control of the Head of Public Service, the Cabinet Secretary for Public Service, and Principal Secretary for the State Department for Public Services. In effect, this is to say they will all come under direct control of State House. 

It is well known that the Head of Public Service is a protected appointee of State House. He is not vetted by Parliament, like Cabinet Secretaries and Principal Secretaries, all of whom veritably work under him. He is an elemental part of the Presidency.

The Presidency needs to reconsider the wisdom of violating the independence of constitutional commissions and authorities, through a direct body blow to Article 234 of the Constitution. Indeed, there is a sense in which this effort is a test case. If the Presidency succeeds in eroding the mandate of the PSC, nothing will stop it from circumventing other constitutional provisions through many more mischievous Acts of Parliament.  

Look, the Public Service Management and Development Bill (2024) is a scandalous power grab effort. It should simply be withdrawn in its entirety. Those privileged to serve in the Presidency have taken oath of office to protect the Constitution.

They should especially protect it from their own appetites for more power and greater control. Indeed, this Bill attempts to bring Devolved Government under the Presidency. If it is not withdrawn voluntarily, Kenyans should reject it, under their dutiful mandate in Article 3(1) of the Constitution. It says, “Every person has an obligation to respect, uphold and defend this Constitution.” The time is now. 

-Dr Muluka is a strategic communications adviser. www.barrackmuluka.co.ke