THE EMPLOYMENT COURT REVERSES INTERDICTION OF THE DIRECTOR GENERAL OF A STATE AGENCY
James WaNjeri - Employment and Labour Lawyer
Corruption in Kenya remains a challenge that has crippled the delivery of public services. Scoring 180 countries worldwide, the Corruption Perceptions Index by Transparency International is the leading global indicator of public sector corruption. Kenya has a score of 31 this year, with a change of -1 since last year, meaning it ranks 126 out of 180 countries, with the worst being at 180.
Combating acts of corruption in the public service is an effort that everyone should laud and join hands in. However, when dealing with public servants, it is important to remember that the employment relationship is protected under the law. In such matters, the ends cannot justify the means when the means are unconstitutional. One way government employees suspected of engaging in corrupt practices are disciplined is through interdictions.
Interdictions are administrative decisions and the Constitution has created a mechanism through which administrative decisions can be challenged. According to the International Labour Organization Administrative Tribunal (ILOAT), an administrative decision is any act by an officer of an organisation that has a legal effect. The Legal effect can directly impact you as an employee, your contract, or the conditions of your employment.
Generally, decisions are challenged by way of Judicial Review proceedings where a party can seek the orders of Certiorari (review and quash a decision), Mandamus(an order to perform an act or duty) and Prohibition(an order to stop someone from doing something). In Judicial Review, the court is entitled to consider the nature of the process against which Judicial Review is sought and satisfy itself that there is a reasonable basis to justify the orders sought. A constitutional petition, however, allows the court to reveiew both the merit of the decision itself and the process of arriving at the impugned decision.
Case
A constitutional Petition was filed in Ogenga v National Industrial Training Authority & another Employment and Labour Relations Petition E225 of 2023, where the petitioner Mr. Ogenga, was the Director General of National Industrial Training Authority(NITA). He was interdicted from office by the chairman of the Authority by a letter dated 24/11/2023. The letter stated that it had been reported that the EACC was conducting investigations into allegations of procurement irregularities in the tender award for the supply of sewing and training machines at NITA. The letter stated
“To facilitate the investigation pursuant to clause 11.16 of the NITA Human Resource Policy Manual; section 42 (7) of the Leadership and Integrity Act 2012; and Regulation 25 of the Leadership Regulation of 2015, it has been decided that you be and are hereby interdicted from exercising the duties of your office from the date of this letter pending finalization of the case.”
He was placed on half salary, full house allowance, and medical allowance. He was duly interdicted (stopped) from accessing NITA offices. In a letter dated 28/11/2023, he appealed the interdiction to the chairman of NITA. In that letter, he highlighted the following issues: -
(a) The tender was procured and awarded in 2018 when he was not the accounting officer.
(b) This contract was awarded by the then NITA Director General and witnessed by NITA Senior Legal Officer.
In his view, the decision was premeditated as the Board sat on Friday, 24th November 2023, following a press conference by the State House Spokesman in a press release titled “War on corruption”. The Chief of Staff and the Head of Public Services purportedly directed his suspension as the Director General following a recommendation by the EACC(Ethics and Anti-Corruption Commission). Since the press conference, he had been denied entry into his office. Further, the investigation by EACC had commenced three years before and the complaint was not against him since he had not been appointed to the office then. The investigation was not against him in person as Director General but against several persons who were involved in that process.
He further stated that the staff cooperated with EACC during the investigation process by writing statements and providing necessary documents. There was, therefore, no basis for interdicting him on flimsy grounds that it was to pave the way for investigations since he was not under investigation.
Response
The acting Director General of NITA filed a response stating that the petitioner was one of the six officers suspended pending EACC's investigation. They were suspended in a press release widely circulated on local and social media, and the suspension was directed by the Chief of Staff and Head of Public Service. The EACC relied on section 42(7) of the Leadership and Integrity Act to redirect the NITA to suspend him. On 22/11/2023, the Cabinet Secretary of the Ministry of Labour and Social Protection wrote to the chairperson of NITA to implement the recommendation of EACC to suspend him under Regulation 25(2) to safeguard the integrity of the investigations being conducted by EACC.
The Board interdicted him via a letter dated 24/11/2023 in terms of clause 11.16 of NITA Human Resource Policy Manual. In his view, the Board acted procedurally and duly informed him of the allegations against him and the reason for the interdiction by the Authority. As DG, the petitioner was in a position to interfere with the investigations as he was the accounting officer who oversaw the execution and implementation of the tender, and so it was necessary to interdict him.
The EACC filed a response stating that they received an allegation that in the financial year 2017/2018, NITA irregularly awarded Tender No. NITA/12/2017-2018 at a contract sum of Kshs.28,411,020.00. The EACC commenced investigations to establish the veracity or otherwise of the allegation. The evidence available indicated that the petitioner terminated the contract, but when goods were delivered after the termination of the said contract, he reconstituted the contract implementation task and directed the Head of the Supply Chain to inspect and accept the goods. He approved the payment of Kshs.4,800,654.00 for the partial delivery of the said goods. Following this evidence, the investigators had recommended against the petitioner, charges of abuse of office and conspiracy to commit corruption offence for the sum of Kshs.28,411,620.00.
The EACC claimed that it acted within its statutory mandate in issuing the letter to NITA. So, there was no malice and illegal action, as alleged by the petitioner. They did not violate any rights of the petitioner under Articles 27(1), 47, 50(1), and 236 of the Constitution. The investigations were not selective, and the suspension was not inconsistent with the provisions of Article 24(1) (e) of the Constitution.
Further, the petitioner, being a public officer, holds a position of trust and is subject to the provisions of section 42(7) of the Leadership and Integrity Act (LIA), which applies to all public officers. His suspension was essential due to his potential to interfere with investigations, including tampering with evidence and intimidation of witnesses. His continued holding of the esteemed public office was contemptuous and offensive to the spirit and letter of Articles 73 and 232(1) of the Constitution and section 8 of the LIA, General Code of Conduct and Ethics under part III of the Public Officers Ethics Act.
Finding
The Court began by noting that suspension or interdiction of a public officer from employment pending investigation is a matter that relates to employment and labour, and it therefore had proper jurisdiction to determine the matter.
The next question for determination was on the lawfulness of the suspension. Under the law, EACC has the mandate to direct the suspension of a public officer under section 42(7) of LIA as read with regulation 25(2) on grounds of necessity. The necessity occurs when it is established that the person has the ability to interfere with investigations by either concealing or tampering with relevant documents and/or interfering with potential witnesses by virtue of his position. Looking at the letter of interdiction written by the chairman of the Board to the petitioner, the court found that a plain reading of the letter leads to the conclusion that no specific charges were placed before the petitioner with a request to show cause why he should not be interdicted as directed by EACC. He was also not presented with any opportunity to be heard by the board of NITA before the interdiction. The period of interdiction was also not stated in the letter.
The letter did not refer to any meeting of the Board that decided to interdict the petitioner. While the petitioner filed an appeal against the decision to interdict him to the chairman of the Board, there was no evidence that they ever responded to the appeal or gave the petitioner any opportunity to be heard on the appeal. Accordingly, the court was satisfied that the Petitioners rights under Article 236(b) of the Constitution had been violated which provides that a public officer should not be subjected to disciplinary actions without due process of law. The Board ought to have given the petitioner an opportunity to show cause and/or to be heard before the punitive decision to interdict him on half pay.
While the investigations by EACC commenced in the year 2019, the petitioner had not been charged with any corruption and or economic crime as of 2023 to warrant keeping him under suspension at all or for a period of up to 12 months.
NITA did not also refute the petitioner’s position that the office of the Auditor General did not qualify the tender that had been awarded by his predecessor in the year 2018. The circumstances under which the tender was cancelled and receipt of and payment of some goods supplied to NITA had not been placed before the court. This matter of receiving goods only came up in court and it was not cited as the reason for the interdiction of the petitioner by NITA. Therefore, he had no opportunity to know the actual allegations made against him and to explain himself on the matter other than the reference to the matter by the EACC in its replying affidavit.
It was the finding of the court that “In conclusion the interdiction of the petitioner by the 1st respondent is arbitrary, unreasonable and disproportionate in the circumstances of the case.”
The Court found fault with the procedure adopted by the board, finding that:
1. They violated the cardinal rules of natural justice by not giving the petitioner an opportunity to be heard before imposing an indefinite suspension on half pay, a violation of articles 236 (a) and (b) read with Article 50(1) of the Constitution of Kenya 2010.
2. This action violated the petitioner's right to fair and expeditious administrative action, as defined in article 47 (1) read with section 4 of the Fair Administrative Action Act, 2015.
3. Five months from the date of interdiction, NITA had not provided any report of investigations conducted by the Board.
It was clear to the Court that NITA, “which is an independent statutory body, abdicated its mandate to lawfully discipline the petitioner and blindly followed instructions from 3rd parties without giving petitioner equal protection and benefit of the law in violation of the petitioner’s right under Article 27(1) of the Constitution.”
The Court declared the interdiction unlawful and unfair. An order of certiorari was issued quashing the interdiction, accompanied by an order for mandamus reinstating the Petitioner to his position on full benefits.
Rules on interdiction
Justice Monica Mbaru of the Employment Court issued guidelines to be followed when issuing interdicts in the case of Fredrick Saundu Amolo v Principal Namanga Mixed Day Secondary School & 2 others [2014] eKLR. For a start, before an interdict can be found valid, the same must be based on fair reasons and must be implemented according to fair procedure. This is what can be cited as the 3-dimension criteria; First, the employer must have a justifiable reason to believe the employee has engaged in serious misconduct to form what is commonly called a prima facie case;
Secondly, there is some objectively justifiable reason to deny the employee access to the workplace based on the integrity of any pending investigation into the alleged misconduct, or some relevant factor that would place the investigation or the interest of the affected parties in jeopardy; and
Thirdly, the employee is given the opportunity to state his case or be heard before any final decision to interdict is made.
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