The Communications Authority of Kenya (CA) will have to start afresh recruitment of a new director-general to replace Francis Wangusi after the Employment and Labour Relations Court quashed the advertisement for the vacancy.
This means Mercy Wanjau will continue to hold the position in an acting capacity.
Justice Maureen Onyango found that the advertisement for the vacancy did not meet the minimum statutory requirements in terms of the qualifications for the position and the process of advertising.
The judge said the authority published two advertisements for the vacancy, the first being on May 22, 2020, and the second on June 17, 2020.
The closure of the second advertisement was on June 23, 2020, with Justice Onyango saying this violated the hiring rules.
She said the second advertisement could not be deemed to be a continuation or extension of the first one. The judge said a person who only saw the re-advertisement and not the original one was entitled to the full 21 days before closure.
“Both the original advertisement and the re-advertisement failed to meet the minimum requirements under the Public Service Commission Human Resource and Policies Procedures Manual of a minimum of 21 days,” said the judge.
The policy provides that vacancies in the Public Service should be open for at least 21 days before closing.
In this case, the original advert was published on May 22, 2020, and was to close on June 9, a duration of 18 days.
The re-advertisement was on June 17 and to close on June 23, thus giving potential candidates five days to apply.
While ruling on a petition filed by the Information Communication Technology Association of Kenya against the Authority, the judge found that there was both procedural impropriety and illegality in the re-advertisement.
Evidence tabled in court also shows that the two advertisements were the same word for word.
Justice Onyango added that the regulator altered the requirements for the position by enhancing the minimum qualifications set out in the ‘Mwongozo’ Code of Governance for State Corporations promulgated by the President under Executive Order No. 7 of 2015.
‘Mwongozo’ sets out the specifications for appointment of chief executives of State corporations as a holder of a degree in the relevant field from a university recognised in Kenya, has at least 10 years knowledge and experience in the relevant field and meets the requirements of Chapter six of the Constitution, among others.
Another specification is that the candidate should have served in a position of senior management for a period of at least five years and meets the requirements of the fit and proper test.
But the CA in the advertisement indicated that the successful applicant should possess extensive leadership and managerial experience of at least 15 years, 10 of which must be at a senior managerial level.
Another qualification set by CA was that the applicant must possess a postgraduate degree in a relevant discipline and must be affiliated to a professional body.
Further, that the ideal candidate should also demonstrate in-depth knowledge and experience preferably in a regulatory environment.
Appointment to the position will be on contract for a term of four years, renewable once, subject to satisfactory performance, read the advert.
Justice Onyango said tge CA acted ultra vires by enhancing the qualifications as it locked out persons, including members of the petitioner who are qualified under the statutory requirements.
"The Respondent (CA) had no powers to alter the minimum requirements for appointment. Enhanced qualifications can only be an added advantage to be considered during interview, among other unique qualifications of each of the candidates. It cannot be used as a criteria to lock out persons who are otherwise qualified for the position from applying or from being shortlisted and given an opportunity to compete for the advertised position," the court said.
Justice Onyango found that persons who are qualified under 'Mwongozo' were discriminated by the enhancement of the minimum requirements which locked them out.
"The Board further violated Article 73 on the Guiding Principles of Leadership and the Leadership and Integrity Act," said the judge.