Attorney-General Kihara Kariuki has supported the Council of Governors (CoG) in its row with Energy Cabinet Secretary Monica Juma over the appointment of directors at the Rural Electrification and Energy Corporation (REREC).
Mr Kariuki has asked Dr Juma to revoke for the second time an April 20 Kenya Gazette notice that appointed six directors of REREC, adding that the hiring breached the law because it excluded CoG nominees.
The Energy Act of 2019 allows the Cabinet Secretary to appoint three directors and the CoG four.
Dr Juma on April 14 appointed the six directors to serve at the State agency for three years based on the Energy Act of 2006, which ceased to be in force in March 2019.
She revoked the April 14 Kenya Gazette and appointed the six directors through the April 20 notice using the Energy Act of 2019, drawing protests from CoG.
The AG has asked Dr Juma to make fresh board appointments in consultations with the county chiefs to avoid further litigation.
“It is our advice that the ministry should revoke the fresh gazette notice to the extent that they purport to make appointments that should be made by the council,” Mr Kihara said in a May 6 letter to Dr Juma seen by the Business Daily.
“This will avert unnecessary litigation while ensuring that the corporation has a functional board without undue delay,” he added in the letter copied to the Head of Public Service Joseph Kinyua.
The governors had sought to be enjoined in an ongoing court case.
Dr Juma has been sued for ignoring the CoG nominees and using the defunct Energy Act of 2006, which gave the Cabinet Secretary the right to appoint eight of the 11 REREC board members.
Activist Martin Njoroge argues in the suit that the Cabinet Secretary used a law that was repealed in 2019 to appoint Hassan Sora, Rhoda Njuguna, Isaac Mbeche, Samson Maundu, Henry Rono and Hassan Mohamud Haji as board members.
Dr Juma revoked the Kenya Gazette notice that was the subject of the suit and appointed the six using the Energy Act of 2019.
The Attorney-General (pictured) says the revocation of the April 14 Kenya Gazette notice does not eliminate the grievances that triggered the court suit.
“While the revocation of the impugned gazette notice may have taken away the substratum of the current case, the grievances that the case sought redress for still exist to the extent that the council still contends that there was a violation of the law in the appointment process,” said Mr Kariuki.
“Therefore, there is the real risk of fresh litigation, which will be highly merited for the reasons explained hereinabove.”
The move to lock out the CoG nominees strengthens Dr Juma’s hand in control of the REREC board, which is now dominated by her appointees.
The Energy Act of 2019 says REREC should have a 10-member board, with its chief executive serving as the secretary.
The 10 include a chairperson appointed by the President, the principal secretaries of the National Treasury and the Energy ministry, three members hired by the Energy Cabinet Secretary and four persons from CoG.
“These appointments are not only irregular but a deliberate attempt to exclude the representation of the Council of Governors on the board,” said Martin Wambora, the CoG chair and Embu governor.
The role of CoG on the REREC board is the product of changes to the 2019 Energy Act, which widened the mandate of the agency to include working with county governments to expand electricity connections, fundraising, research and development of a master plan for Kenya’s renewable energy.
The State agency is partnering with county governments and constituencies under the National Government Constituencies Development Fund (NG-CDF) to boost rural electrification.
Under the deal, county governments and constituency development funds will meet half of the cost of bringing power grids to rural areas, with REREC contributing the balance.
The move is meant to deepen electricity supply to rural homes and shopping centres, especially in arid and semi-arid areas.
REREC returned a surplus of Sh7.2 billion in the year to June, according to the Treasury estimates, and has recently accelerated rural electrification projects, moving Kenya closer to the ambitious goal of universal electricity access.