Paul Mwangi, Azimio la Umoja Leader Raila Odinga's long-term legal aide, on Tuesday, May 16, challenged President William Ruto over firing former Principal Secretary at the Ministry of Health, Josephine Mburu, and the suspension of the entire Kenya Medical Supplies Authority (KEMSA) board.
Lawyer Mwangi argued that the Head of State was wrong in sacking and suspending the officials since the Constitution did not give him such authority.
Raila's Legal Counsel observed that President Ruto had abrogated the Constitution and grabbed the powers that belong to the Public Service Commission (PSC).
"The President can only fire public servants he has appointed. Article 234 Constitution says only Public Service Commission can discipline and fire public servants," Mwangi stated.
Mwangi also asked President Ruto to embrace the new Constitution that limited the President's powers and extended the citizens' role.
He wondered why State Law Office was not advising the President appropriately to avoid unnecessary litigations and political embarrassments.
"This Article was put because, in the old Constitution, public servants served at the pleasure of the President," Paul Mwangi stated.
He, however, did not clarify whether he would file a suit individually or on behalf of Azimio La Umoja party leader Raila Odinga. Raila, through Mwangi, sued Ruto, for forming a commission of inquiry investigating the Shakahola massacre.
In his affidavit, the lawyer argued that Ruto had bypassed the Parliament mandated with the task.
In a rebuttal, United Democratic Alliance (UDA) Party Secretary General Cleophas Malala urged President Ruto to ensure all suspected criminals in KEMSA were weeded out of the authority.
"As UDA Party, we support the President's decision of terminating the appointment of the PS- Public Health and Professional Standards," Malala stated.
On Monday, May 15, President William Ruto fired Josephine Mburu as the Principal Secretary of, the State Department for Public Health and Professional Standards over the alleged impropriety within the Kenya Medical Supplies Authority (KEMSA).
The Head of State also suspended the entire KEMSA board. It appointed caretaker officials as the Directorate of Criminal Investigations (DCI) moved in to investigate the alleged theft of public funds.
The Employment Act, 2007 (Act No. 11 of 2007) regulates the employment of public servants in Kenya. The Act provides for several grounds on which a public servant can be dismissed, including:
Misconduct: A public servant can be dismissed for misconduct if they have committed a serious breach of the terms of their employment, such as theft, fraud, or assault.
Incapacity: A public servant can be dismissed for incapacity if they cannot perform their job duties due to a physical or mental condition.
Unsatisfactory performance: A public servant can be dismissed for unsatisfactory performance if they have consistently failed to meet their job standards.
Redundancy: A public servant can be dismissed if their job is no longer required due to organisational or economic changes.
Retirement: A public servant can be retired if they have reached the age of retirement, which is currently 60 years.
The Employment Act, of 2007 also provides several procedures to be followed before a public servant can be dismissed. These procedures include:
The public servant must be given a written warning of their misconduct or unsatisfactory performance, an opportunity to respond to the allegations against them, a hearing before a disciplinary committee and a written decision of the disciplinary committee.
If a public servant is dismissed, they may appeal the decision to the Industrial Court. The Industrial Court has the power to overturn the disciplinary committee's decision and reinstate the public servant.
It is important to note that the Employment Act, of 2007 is not the only law that applies to dismissing public servants. Others include the Public Service Act, and the Leadership and Integrity Act.
