NAIROBI, Kenya, Feb 14 – The Public Service Commission (PSC) has strongly differed with the proposal to entrench the office of the National Security Advisor (NSA) in law arguing it will offend the Constitution.
The State Commission expressed the provision will interfere with the President’s leeway to appoint advisors on a need basis and subject to different issues bedeviling the government.
“Legislating the position of the National Security Advisor will tie the hands of the subsequent administration as they will be bound to appoint the legislated advisors which may not be necessary,” stated PSC Lead Counsel Maryanne Monari.
Given the National Security Advisor will primarily focus on security cbloncerns affecting the country, PSC views that creation of the office of the National Security Advisor will open a floodgate for other advisors to agitate for constitutional posts.
“The President should have a freewill to determine the advisors he requires. Legislating this position will open a pandora’s box for other advisors to amend various laws to establish offices,” PSC argued.
Additionally,PSC has pointed out that the National Security Advisor cannot act as the secretary of the National Security Advisory Council as it contravenes the Constitution.
PSC pushed for the implementation of Article 240 of the Constitution that gives National Security Advisory Council authority to appoint their secretary from the membership of the council.
The Commission also argued the legislative amendments seeking to transfer the Public Seal custody from the Office of the Attorney General to the Office of the Head of Public Service.
PSC Legal Advisor Jackline Monami argued that the Public Seal is a national symbol and ought not to be transferred to the office of the Head of Public Service who is executing his mandate under the President’s discretion.
A Public Seal is a special symbol mark affixed on important documents to show that they are real and official.
“This in turn takes away the approval that is required from the Attorney General before the series are fixed on important government documents for the authentication,” said Monami.
This was during public participation of the National Government Administration Laws (Amendment Bill), 2023 which is currently being considered by the National Assembly Justice and Legal Affairs Committee (JLAC).
PSC which is mandated to advise the government on creation and abolition of public offices stated they should be clarification on the difference between the Presidential seal and the public seal.
Ostensibly, PSC has opined that the Office of Public Service who serves as the administrative head of the executive office of the president should be the custodian of the Presidential seal.
“Be the custodian of the Presidential seal transmits executive directives, orders and presidential proclamations to ministry, state organ state departments and state agencies for the information implementation,” noted
On the same breath, the PSC are proposing the separation of the Office of the Chief of Staff from the Office of the Head of Public Service citing conflict of interest.
“The two offices should be separate should be separated as they carry different responsibilities. The chief of staff is personal and private to the President. Hence serving in that capacity defeats the public nature of the Office of Head of Public Service,” stated Monami.
MPs have raised concerns that the Public Seal would be subject to misuse and abuse were it to be transferred to the Office of the Head of Public Service headed by Felix Koskei.
PSC has supported the proposal seeking to entrench the position of the Chief Administrative Secretaries (CAS) , which was ruled unconstitutional by the courts, affixed in law.
The commission are proposing that CASs should have at least 10 years relevant professional experience, five of which should have been in the leadership in the public service or private sector.
However, they are opposed to the amendment proposing that the CASs should be liaising with Parliament on behalf of the Ministries.
“It is the cabinet secretary who is responsible for liaising with parliament.We are proposing that, in that regard in terms of the function of Cas, it should be liaising with parliament on behalf of the Cabinet Secretary,”stated Monami.
The High Court had ruled that the appointment of all of President William Ruto’s 50 Chief Administrative Secretaries was unconstitutional.
While making the ruling, the majority of the 3-judge bench stated that there was no adequate public participation.
Judge Kanyi Kimondo further stated that the framers of the Constitution did not envisage that 50 CASs would deputize 22 Cabinet Secretaries.
“Was there Adequate participation? The petitioners had argued that the appointment did not adhere to public participation especially in the 27 CAS. The judges say that there was no public participation in the appointment of the 27 more CASs,” he ruled.
President William Ruto swore in the CAS on March 23, after the National Assembly declined to vet them, saying it had no constitutional authority to do so.
The appointment of the CASs was suspended after the Law Society of Kenya and the Katiba Institute challenged the President’s move on the grounds that the law only allowed him to appoint 23 CASs rather than 50.