Public Service Commission under the New Constitution

 

 

Open. Accountable. Responsible

 

Contents
Introduction

 Authority

The PSC has acquired the powers to hire and fire top personnel in the Public Service and to structure it, powers that were previously exercised by the President.

 Roles and Functions

The PSC will continuously set the terms of service of all  national public officers, and ensure the public service delivers high performance levels to the public.

 Composition

This 'mother' Commission is led by a Chair and vice-Chair and seven Commissioners. 

 

 Introduction

 

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The Public Service Commission, PSC is in one sense, a 'master' Commission in that, it has a very wide mandate nationally, and is well represented in several of the other Commissions, and State organs. For example, the PSC will have a representative in the Judicial Service Commission, as well as in the Salaries and Remuneration Commission. Chapter 10 - Judiciary, Part 4 - Judicial Service Commission, excerpt: 

171. (1) There is established the Judicial Service Commission.
(2) The Commission shall consist of— (g) one person nominated by the Public Service Commission; ........

And from Chapter 12 - Public Finance, Part 6 - Financial Officers and Institutions. Excerpt:

230. (1) There is established the Salaries and Remuneration Commission.
(2) The Salaries and Remuneration Commission consists of the following persons ....... — (b) one person each nominated by the following ........— (ii) the Public Service Commission;

The PSC existed under the old Constitution - albeit under the direct control of the Offices of the President and the Ministry of Public Service. Going forward, the PSC is now an independent Commission. As the Commission in charge of the Public Service, the PSC will concern itself with the performance and well-being of all State organs and corporations falling under its jurisdiction. Chapter 13 - The Public Service, Part 2 - The Public Service Commission, Article 232:

232. (2) The values and principles of public service apply to public service in— (a) all State organs in both levels of government; and (b) all State corporations.

 


 

 

Authority

 

The PSC is an Independent Commission whose existence and authority are firmly anchored in the New Constitution. Excerpts from Chapter 13 - The Public Service, Part 2 - The Public Service Commission, Article 233:

233. (1) There is established the Public Service Commission.

248. (2) The commissions are—  (g) the Public Service Commission;

The PSC has assumed some of the powers the President had under the Old Constitution such as the design and establishment of departments and offices, as well as the authority to hire persons for top positions within the Civil Service (as the Public Service was then known). Excerpts from Chapter 9 - The Executive, Part 2 - The President and Deputy President:

132. (4) The President may— (a) perform any other executive function provided for in this Constitution or in national legislation and, except as otherwise provided for in this Constitution, may establish an office in the public service in accordance with the recommendation of the Public Service Commission;

And from Part 3 - The Cabinet, in Chapter 9:

155. (3) The President shall— (a) nominate a person for appointment as Principal Secretary from among persons recommended by the Public Service Commission; .......

The two preceding excerpts above from Articles 132 and 155 are designed to take away from the President, the often-abused powers of appointment to high office. Indeed, the PSC conducted the (public) recruitment and shortlisting of persons from whom the President chose his nominees for Principal Secretary. This move (and others) ensure that the PSC like other Commissions protects the rights and liberties of the people of Kenya guaranteed by Article 249 i.e., 249. (1) ...... to— (a) protect the sovereignty of the people; (b) secure the observance by all State organs of democratic values and principles; and (c) promote constitutionalism.

The Commission has the mandate to setup the Public Service bureaucracy and to fill positions within it:

234. (2) The Commission shall— (a) ....... (i) establish and abolish offices in the public service; and (ii) appoint persons to hold or act in those offices, and  to confirm appointments; 

Indeed, in November 2013, the Cabinet Secretary for Lands, Housing and Urban Development had to withdraw a gazette notice in which she had purported to establish the office of a Director-General for Lands in place of the soon-to-be phased-out-position of the Commissioner for Lands - a move that was clearly in contravention of the Constitution's mandate that the PSC is the body vested with the authority to create such an office. 

The PSC is also responsible for the hiring and discipline of staff working in the Service:

234. (2) The Commission shall— (b) exercise disciplinary control over and remove persons holding or acting in those offices;

The PSC will have powers to receive and consider a petition from a citizen seeking the removal of the Director of Public Prosecution and to advise the President during the life of the petition:

158. (2) A person desiring the removal of the Director of Public Prosecutions may present a petition to the Public Service Commission .......
(3) The Public Service Commission shall consider the petition and, if it is satisfied that it discloses the existence of a ground, ...... it shall send the petition to the President.
(4) On receipt and examination of the petition, the President shall, ......, acting in accordance with the advice of the Public Service Commission, appoint a tribunal .......

 

 


 

 

Roles and Functions

 

The PSC's primary role will be to oversee the Public Service's conduct; that it conducts itself in a professional, efficient, responsive, people-centred, transparent, accountable, fair, and corruption-free manner: 

232. (1) The values and principles of public service include— (a) high standards of professional ethics; (b) efficient, effective and economic use of resources; (c) responsive, prompt, effective, impartial and equitable provision of services; (d) involvement of the people in the process of policy making; (e) accountability for administrative acts; (f) transparency and provision to the public of timely, accurate information;

234. (2) The Commission shall— (e) ensure that the public service is efficient and effective;

The place of the Commission was anchored in law upon the passing of the Public Service Commission Act No 13 of 2012 in July of that year. The PSC was therefore expected to immediately embark on vertical and horizontal training and restaffing levels of personnel in the Public Service in order that the Service may conform to the new dictates of the Constitution of Kenya 2010: 

234. (2) The Commission shall subject to this Constitution and legislation–– (d) investigate, monitor and evaluate the organisation, administration and personnel practices of the public service;  (f) develop human resources in the public service; (g) review and make recommendations to the national government in respect of conditions of service, code of conduct and qualifications of officers in the public service;

On the 24th of September 2013, the Commission issued a reminder to all public service officers to declare personal financial information on income, assets and liabilities for themselves, spouses and children below 18 years, to comply with the provisions of the Public Officer Ethics Act of 2003 that requires all officers to make such submission every two years.

Further, the PSC must operationalise those constitutional provisions that focus on positive affirmation principals and especially those that encourage merit, regional balance, and positive discrimination of persons with disability:

232. (1) (g) subject to paragraphs (h) and (i), fair competition and merit as the basis of appointments and promotions; (h) representation of Kenya’s diverse communities; and (i) affording adequate and equal opportunities for appointment, training and advancement, at all levels of the public service, of–– (i) men and women; (ii) the members of all ethnic groups; and (iii) persons with disabilities.

Although the PSC does not exercise administrative control over the public service in the Counties, it will nevertheless; 

234 (2) ....... (i) hear and determine appeals in respect of county governments public service; ........

The PSC's performance across its sphere of influence i.e., the Public Service, is subject to review and examination by the Executive and Parliament in the spirit of the New Constitution: 

234. (2) The Commission shall (h) evaluate and report to the President and Parliament on the extent to which the values and principles mentioned in Articles 10 and 232 are complied with in the public service;

 


 

 

Composition

 

 Prof Margaret Kobia Chair of the Public Service Commission courtesy of nationdotcodotkeProf Margaret Kobia, the Chair of the PSC

 

 

 

 

The Commission has nine members:

 233. (2) The Public Service Commission consists of a chairperson, a vice chairperson and seven other members ........

The  Commissioners will serve for a single term of six years from January 2013 to January 2018.


 

 

References:

1. Constitution of Kenya, 2010. National Council for Law Reporting. The Attorney General.

2. Public Service Commission Act No 13 of 2012. National Council for Law Reporting. The Attorney General.

 

 

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