Several government officials and State agencies are embroiled in squabbles over the exercise of powers as President Uhuru Kenyatta’s two-term tenure ends. Some of the conflicts, which have spilled into the courts, arise from duplication of roles.
Outside courts the officials are taking each other head-on over execution of their duties, especially on matters related to the criminal justice system and the forthcoming elections.
President Kenyatta himself and his deputy William Ruto are already in a renewed war of words involving succession politics.
Last month, Dr Ruto, who is eyeing the presidency, told a foreign delegation led by former Nigerian president Goodluck Jonathan that he was “running more against my boss (President Kenyatta) than his (Kenyatta’s) preferred candidate (Raila Odinga)”.
The most recent acrimony in the Jubilee government is the exchange at a Nairobi court between the Office of the Director of Public Prosecutions and the Directorate of Criminal Investigations over the exercise of prosecutorial powers and the fight against terrorism financing.
Another recent memorable war of words involved the Office of the Deputy President and that of the Principal Secretary in the State Department of Interior and Citizen Services (in the Ministry of Interior and Coordination of National Government) over confidential reports collected by the National Intelligence Service (NIS).
DP Ruto and Interior Principal Secretary Karanja Kibicho have had public spats over the reports regarding who is likely to win the presidential polls. Dr Ruto claims the highly secured reports indicate he is leading, while Dr Kibicho claims Azimio coalition candidate Raila Odinga is the one ahead.
The DP has also been in a row with ICT Cabinet Secretary Joe Mucheru over allegations that the minister is planning to use his docket to interfere with and influence the outcome of the August 9 General Election.
Dr Ruto has also been in an exchange with top government officials, including Cabinet secretaries Peter Munya (Agriculture), Fred Matiang’i (Interior), Ukur Yatani (Treasury) and Eugene Wamalwa (Defence) for openly backing Mr Odinga’s State House bid.
Mr Munya, Mr Yatani and Mr Wamalwa were appointed to lead presidential campaigns for Mr Odinga, the Azimio la Umoja One Kenya candidate.
The fight in the government has also extended to parliamentary committees, where State parastatals are in a disagreement over the discharge of their duties.
Last week, the government’s Directorate of Education and Quality Assurance Council (ESQAC) took Education Cabinet Secretary George Magoha to court over his alleged failure to appoint a team to supervise the rollout of the Competency Based Curriculum (CBC).
Though the State agencies are funded by taxpayers, the fights have revealed inadequate regulations and framework to govern their operations.
The vicious fights between the State agencies have also revealed the fear of officials that their offices could be dissolved or rendered irrelevant.
In Parliament, the Public Investments Committee was caught up in the vicious fight between the Kenya National Qualifications Authority (KNQA) and the Technical and Vocational Education and Training Authority (TVETA) over who has the powers to regularise the academic papers of students from local and foreign universities.
In a meeting with KNQA last month, the committee found that a gazette notice published by the Education Cabinet Secretary in 2018 conferring the powers to KNQA on certification of academic papers were not considered by lawmakers as required by law before they came into force.
The committee, therefore, observed the authority had been performing the function that was not meant for it as it was not backed by any law.
KNQA Managing Director Juma Mukhwana told the committee that he was not aware the regulations were not considered by Parliament.
He blamed sibling rivalry in the academic section, especially with the TVETA, over the stalemate.
Not even a retreat held in September 2021 in Naivasha to resolve the rivalry could help, as no positive outcome came from it.
The fight also spilled into court, where KNQA and the Commission for University Education (CUE) took each other on over verification of academic certificates.
In a petition filed by Mr George Bala, the petitioner said KNQA had no such powers and the 2018 regulations issued by the Education CS were unconstitutional.
On the Health committee, MPs were trying to resolve a row between the Ministry of Health and the National Treasury over settling a Sh15 billion debt that the ministry had failed to clear for 26 years now.
The ministry has not paid Equip Agencies after they supplied the government with anti-malarial drugs in 1995.
Equip Agencies Director Divyesh Patel petitioned the National Assembly, seeking their intervention over the debt, saying his business and properties risked being auctioned.
The court in 2017 instructed the ministry to pay the company Sh1,862,302,772 plus interest compounded at 18 per cent per annum from March 1, 1999 together with the costs of the suit in the sum of Sh446, 073,972
The Attorney-General, in his advice to the ministry over the matter, noted that there are limited judicial options for the resolution of the matter and further delay in settling the issue would result in interest accrual and expose the government to greater loss of public funds.
Health CS Mutahi Kagwe, in his October 7, 2021 response to MPs regarding the matter, said the ministry had made several requests to the National Treasury for a budget allocation to cover all pending bills but had not received any money.
The two ministries were last year given 90 days to resolve the matter in order to save taxpayers from paying billions that is accruing as interest.
On the Transport committee, lawmakers are trying to broker a deal between the Transport ministry and the Treasury over a Sh150 billion infrastructure bond from Kenya Roads Board (KRB).
While the Transport ministry wants the bond floated, the Treasury has slammed brakes on the move on fears that it would upset the International Monetary Fund over mounting public debt.
The KRB has been keen on road bonds to find money for maintenance, which has been lagging for decades due to insufficient funding. The bonds are backed by over Sh70 billion collected from motorists through the Roads Maintenance Levy Fund charged at Sh18 per litre of fuel at the pump.
Others in court were six State professional regulatory bodies in the health sector who sued the Attorney-General over enforcement of provisions of the Universities (Amendment) Act, 2016.
The bodies include the Kenya Medical Laboratory Technicians and Technologies Board, Kenya Medical Practitioners and Dentists Board, Kenya Pharmacy and Poisons Board, the Nursing Council of Kenya, the Kenya Nutritionists and Dieticians Institute and the Public Health Officers and Technicians Council.
They alleged that Section 5 of the Universities (Amendment) Act, 2016 was unconstitutional.
Professional education
They contend that its implementation would have far-reaching implications on their role (professional regulatory bodies) in the regulation, licensing and supervision of professional education and as such interfere with the mandate of the petitioners to enforce quality standards.
They argue that the amendments introduced in Section 5A of the Act purport to repeal the statute that establishes the bodies by criminalising their functions.
They also say the disputed section takes away functions from competent regulatory bodies established by statute and vests them in the Commission for University Education.
Another contention is that the enactment lacked the required public participation as envisaged under the Constitution.
They argue that the profession would suffer great prejudice due to the risk of producing ‘half-baked graduates’ who may then proceed to join the health profession.
The Bomas of Kenya and the Kenya Urban Roads Authority (Kura) were also involved in a land ownership dispute.
The government cultural village was expecting to be paid Sh85 million as compensation.
Bomas had filed a court suit against the Attorney-General and Kura for what it termed the illegal acquisition of its property, but the case was withdrawn after intervention of the Attorney-General.
Bomas, which is under the Ministry of Tourism, wanted compensation for the 0.8055 hectares acquired for the upgrading of a section of Lang’ata Road.
Acquire land
But the AG advised that a State agency does not have the mandate to compulsorily acquire land that belongs to a separate government entity.
As such, he said, the compensation could not occur.
Another fight involved the Public Service Commission against the State Corporations Advisory Committee (SCAC). The fight involved the management of human resource issues in the public sector.
In resolving the matter, Employment and Labour Relations Court Judge Monica Mbaru ruled that the PSC has the authority over State corporations and that SCAC can only exercise delegated authority on human resource matters.
“State corporations are part of the public service and its employees are public officers as defined in Article 260 of the Constitution. Such employees are part of the public service and hence public officers,” the judge ruled.
The decision is the culmination of a power struggle between the Communications Authority (CA) and SCAC on one side and the PSC and three State agencies on the other.
In May 2017, SCAC issued a circular requiring all State corporations to submit before it their human resource instruments for scrutiny and approval.
On the basis of this circular, CA reviewed human resource instruments including the Human Resource Policy and Procedures Manual, Career Guidelines, Job Grading, Organisational Structure and State Establishment. BY DAILY NATION