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Governors’ move to kick out staff could expose them to legal suits

The recently-elected governors have been in office for barely a week yet their disruptive start is being severely felt by county staff.

While the first term governors are seeking to rid the counties of the staff hired by their predecessors who were also their opponents in the last election, those who have been re-elected for a second term like Siaya Governor Cornel Rasanga and Migori’s Okoth Obado have also purged some staff they accuse of supporting their opponents.

Busia Governor Sospeter Ojaamong is also reported to have warned that he would crack down on some county staff who sided with his opponent Paul Otuoma.

Machakos Governor Alfred Mutua was the first to suspend some 437 financial officers, setting the stage for his counterparts in defiance of the advice given by the Public Service Commission chairperson Margaret Kobia.

“Legal steps for terminating the services of a worker on permanent and contract terms must be respected by all, otherwise counties risk spending public funds in running court battles,” said Prof Kobia.

That has not deterred the governors from the bloodletting in the counties as they seek to entrench total loyalty oblivious of the law.

RIVALS

For some governors, ridding the counties of perceived supporters of their rivals has not only been disrespectful but downright inhuman.

For instance, in Migori, goons perceived to be Governor Obado’s supporters forcibly evicted the County Director of Human Resources Gilbert Nyandiga on grounds of his questionable loyalty to the governor.

Similarly in Siaya, goons stormed the county government offices to effect Governor Rasanga’s inauguration order to those who did not support him not to report to office. The youths blocked several staff members.

READ: Stop sacking staff, governors warned

In Nandi and West-Pokot, governors Stephen Sang and Prof John Lonyangapuo suspended top county officials including the county secretaries, all county executive committee members (CECs), chief officers, directors, administrators and all sub-county revenue officers. 

The same has happened in Kisumu where Prof Anyang’ Nyong’o sent the acting county secretary, Dr Ojwang’ Lusi, nine CECs and 14 chief officers on “compulsory leave”, arguing it was part of the “restructuring process”.

In Meru, Governor Kiraitu Murungi seems not keen on working with staff he inherited from his bitter political rival Peter Munya. The same trend has been reported in Kwale, Laikipia and Tharaka Nithi counties among others.

NEW BROOMS

But even as the new brooms sweep the counties clean, the law might eventually catch up with the governors and either force them to retain county staff inherited from their predecessors or bear the legal consequences as a result of breach of contracts.

Unlike their predecessors who had some latitude to have their relatives and friends hired to the county governments through the County Public Service Boards (CPSBs), the new governors largely have to make do with a majority staff that they may not have political sway over.

Unlike the CECs, chief officers, county secretaries and personal advisers whose “contract duration is tied to the term of office of the governor”, persons working in the county public service, who are the bulk of the staff, work on permanent and pensionable terms just like their counterparts in the national government.

READ: Atwoli threatens to sue governors over sackings

While the County Governments Act, 2012 gives the governors the power to hire or fire CECs, chief officers, county secretary and personal advisers, the governor is constrained by law from directly hiring or firing members of CPSBs and staff recruited by the boards.

TERMINATE APPOINTMENTS

According to lawyer Peter Wanyama, governors “have no powers to terminate appointments in the County Public Service. This means that persons working in the Service are insulated from changes at the top.”

Members of the CPSBs have their terms of office insulated by law in Section 58(4a) of the County Governments Act, which provides that “A member of the Board shall hold office for a non-renewable term of six years.”

It means any radical reforms that newly-elected governors may have planned may not come to fruition.

READ: Rasanga ‘sacks’ county staff who didn’t support him

But even though the CECs, chief officers, county secretaries and personal advisers are “subject to the pleasure doctrine” which gives governors powers to hire and fire, Mr Wanyama, in an advisory to the Council of Governors dated August 18, cautions the incoming governors against arbitrarily terminating their contracts. This, according to Mr Wanyama, is because “courts (as interpreters of law) are very sympathetic to employees in matters involving breach of contract.”

“Therefore, as a matter of legal compliance and also for purposes of foreclosing legal exposure, I advise that governors examine each and every contract and get specific legal opinion on the terms therein before taking precipitate action. Ordinarily, it is legally safe to activate the termination clause(s) than act generally,” the advocate advised CoG. Mr Wanyama is also advising the incoming governors to consider the financial implications of termination of contracts of outgoing CECs, chief officers, county secretaries and personal advisers before taking any action.

MONETARY OBLIGATION

“If the termination will result in a huge monetary obligation to the county government, the governor has discretion to allow the officer to continue to serve until expiry of the contract,” he stated in the advisory.

The import of this is that despite these cadre of county government appointees serving at the pleasure of the governor, the cost considerations of removing them must be taken into consideration.

It means that some newly- elected governors, if the advisory is anything to go by, might be forced to retain the predecessors’ political appointees until the expiry of their contracts.

In the same advisory, the governors are also being asked to ensure that their political appointees’ contracts expire on the day the country will be going for the next General Election.

CONTRACTS

“To avoid pitfalls, all contracts executed in the new administration should be drafted to expire on August 8, 2022 or such earlier date as the governor deems fit. They should not run beyond August 8, 2022,” the lawyer says.

Meanwhile, the chairman of the Institute of Human Resource Management Elijah Sitimah says there is an urgent need to amend the County Government Act to protect civil servants working in counties to provide for security of tenure.

“This will ensure that there is continuity at the county government,” he said in a statement.
He also echoed Mr Wanyama’s statement that the county bosses should look at individual contracts which spell out the terms of engagement for each employee before dismissing them.

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