A proposed amendment to the law seeks to make it illegal to appoint retirees to public office, which if enacted would also discourage presidential appointments of older people to State corporations.
President Uhuru Kenyatta has courted controversy in his second term in office through appointments of retirees to parastatals by his administration. These include the appointment of former Othaya MP Mary Wambui that a court overturned, only for her to land another government job in January this year.
In 2018, President Kenyatta defended his appointment of 91-year-old former Vice President Moody Awori to oversee the Sports Fund, saying his youthful appointees had let him down.
“If you see how young people we have trusted with positions steal public money, I’d rather appoint somebody like Awori, whom I am sure will protect your money to ensure intended developments and services get back to the people,” Mr Kenyatta said.
“I could see yesterday in different platforms people complaining about my choice of a 91-year old Awori to look after the youth’s Sports Fund. The people complaining should put themselves in my shoes. People should stop making noise and let me do my work,” the President said in December 2018.
But such appointments of retirees- or even granting contracts to civil servants who have attained the retirement age of 55 to stay longer in public service — will be punishable if the Public Service Commission (amendment) Bill of 2019, now at the last legislative stage in the National Assembly, is enacted.
Yesterday, it emerged the chairperson of the departmental committee on Administration and National Security Paul Koinange intends to move other amendments to the Bill at the committee stage that will make it an offence to appoint a retiree to a State or public office.
The committee proposes insertion of a new sub-section 1A which stipulates: “A person who appoints a retired public officer in a State office or Public office shall, on conviction, commit an offence and be liable to imprisonment for a term of not less than three months.”
And to seal loopholes authorities have exploited to make such appointments, another proposed amendment seeks to delete a provision in the Public Service Commission Act of 2017 that provides for exemptions.
The sub-section targeted for scrapping permits the Public Service Commission (PSC) or other appointing authority to engage a public officer for service after retirement, upon such terms of contract as may be agreed in three instances.
These instances are: Where the public officer possesses rare knowledge, skills and competencies for the time being required in the service; the retired officer is willing to be engaged on contract; and the retired public officer’s performance shall not in any way be impaired by age.
And for further clarity, another amendment targets a provision in the Act that is vague about retirement on the basis of age as it only refers to instances where a public officer has attained the mandatory retirement age “as may be prescribed in regulations.”
The MPs want the phrase “as may be prescribed in the regulations” substituted with specific reference to “of fifty-five years and for persons with disabilities the mandatory age of sixty years.”
“The amendments are meant to increase the job vacancies available to Kenya citizens below the age of 60 years. These positions are sometimes held by persons beyond the age of 60 years on account that they possess rare knowledge, skills and competencies for the time required in the service.
“The Public Service Commission and other appointing authorities should be keen on succession planning and take the necessary steps to ensure that they train other persons in the organisations to take up these positions,” reads the Bill by Embakasi Central MP Benjamin Mwangi.
Official data shows 75 per cent of the country’s population is under the age of 40 years. The National Assembly has been considering a Motion seeking to reduce the retirement age to 50, from 60, lamenting that more than 800,000 graduate from colleges each year, yet only about 70,000 are employed.
Among the President’s pledges while campaigning for a second term was to “expand the participation of young people in national development and guarantee that 30 per cent of all appointments, projects and budgets specifically target them.”
Youth employment and creation of at least 6.5 million jobs by 2022 were among the highlights of his manifesto.
Data from the PSC shows that majority of government officers have attained or are nearing retirement age.
Some of those who attain retirement age will be placed on contract, according to the PSC, which further locks out young people from available opportunities.
“The service had an aging workforce, with 37 per cent of officers being 50 years and above as at June 30, 2017, compared to 35 per cent in the same period in 2015/16 financial year …” read a report tabled in the House in 2018.
The Bill, however, protects retirees with ongoing contracts.
“A public officer engaged for service by the commission or other appointing authority after attaining the mandatory retirement age before the commencement of this Act shall serve for the remainder of the term of the contract,” reads a transitional clause.
The Bill also intends to address the case of an officer acting in a position for more than six months.
The chairperson of the National Security committee proposes to amend the Bill by introducing a new clause that stipulates: “An appointing authority who fails to fill a vacant position under subsection (3) within six months, commits an offence, and is, on conviction, liable to imprisonment for a term of not less than three months.”
It seeks to replace the initial proposal to only scrap the acting allowances beyond the six months.
Initially, the Bill had only provided thus: “Upon the expiry of six months, an officer appointed under subsection (3) shall not be entitled to any acting allowances.”
“The period of six months prescribed should provide adequate time for the organisation to recruit and substantively fill the position. Failure to comply with this provision will result in the officer not earning any acting allowances,” read the initial provision proposed to be made tougher by prescribing a jail term.
MPs also want more clarity on the definition of a public officer to stress exemption of elected leaders.
Currently, the Act defines a “public officer” as any person other than a state officer who holds a public office.
However, the Bill proposes another definition that reads a public officer “means any person other than a state officer who holds a public office or a state officer who holds a public office or state office but not a state officer who holds an elective position.” BY DAILY NATION