The High Court has struck down the Attorney General’s directives that mandated state corporations and public universities to follow AG-issued guidelines on human resources (HR) management.
The court ruled that such directives cannot override the constitutional authority of the Public Service Commission (PSC).
Justice Lawrence Mugambi issued the ruling on Friday, December 5, following a joint petition by Katiba Institute and anti-graft advocate John Githongo.
The petition challenged advisory letters from the Attorney General and the State Corporations Advisory Committee (SCAC) that sought to approve HR instruments for state corporations and public universities.
In the then directives, the government ordered state corporations to seek approval from the Cabinet Secretary of Public Service and the State Corporations Advisory Committee for staff recruitment, appointments, transfers and terms of service.
The court maintained that the PSC’s mandate under Article 234 of the Constitution includes establishing and abolishing offices, monitoring, evaluating, and investigating personnel activities, and approving human resource instruments such as organisational structures, staff establishments, HR manuals, and career progression guidelines.
“These responsibilities cannot be usurped or bypassed by other bodies, including the State Corporations Advisory Committee or the Attorney General,” Justice Mugambi noted.
At the same time, the court also ruled that the Salaries and Remuneration Commission (SRC) cannot directly issue advisories to state corporations or public universities regarding remuneration and benefits. As such, the court ordered that all such advice must be routed through the PSC to maintain constitutional order.
Additionally, Justice Mugambi emphasised that any attempt by other entities to perform the PSC’s duties without a written delegation under Article 234(5) is unconstitutional and nullifies the legal process.
The court quashed the Attorney General’s advisory dated July 27, 2023, and the SCAC letter dated August 8, 2023, declaring them unlawful and without legal effect.
The court affirmed that state corporations and public universities are part of the public service and are subject to PSC oversight, and reinforced institutional accountability and coherence in human resource management.
In his observations, Justice Mugambi noted that bypassing the PSC in advising or approving remuneration matters undermines the constitutional scheme and creates confusion in public governance.
The ruling further clarified that advisories from the Attorney General are binding unless overturned by a judicial decision, but they cannot contravene the PSC’s constitutional functions.
“Legal advice by the Attorney General is a justiciable issue, and this Court has jurisdiction to determine the constitutionality of that advice. The High Court retains the jurisdiction and has the final say on the interpretation of the Constitution.”
