Energy Cabinet Secretary Monica Juma is on the spot for using a non-existent law to hire six directors of Rural Electrification and Energy Corporation (REREC), excluding nominees of the Council of Governors (CoG) from the power firm’s board.
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.
The Energy Act of 2019 allows the Cabinet Secretary to appoint three directors and the CoG four. The appointments were made public through an April 14 Kenya Gazette notice.
In the same notice, Dr Juma cited the Energy Act 2019 in appointing four directors of the Energy and Petroleum Regulatory Authority (Epra) — the energy regulator.
Dr Juma has now 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.
High Court judge George Odunga has allowed lawyer Martin Njoroge to file a suit seeking to have the board appointments quashed and a declaration that Dr Juma broke the law and is therefore unfit to hold any public office.
The judge directed Mr Njoroge to file the suit before May 6.
“That leave be and is hereby granted to the applicant to apply for judicial review by way of an order of a declaration hat promulgating gazette notice… the Cabinet Secretary for Energy, Dr Monica Juma has violated section 45(1) of the Energy Act of 2019 and articles 10 and 232 of the Constitution and is therefore unfit to hold any public office,” the Justice Odunga said.
Mr Njoroge said the Cabinet Secretary used a law that was repealed in 2019 to appoint Hassan Sora, Rhoda Njuguna, Isaac Mbeche, Samson Maundu, Henry Rono and Hassan Mohamud Haji as board members.
The move to lock out the CoG nominees will strengthen Dr Juma’s hand in control of the REREC board, which is now dominated by her appointees.
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 deepen 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 contribute 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.
“By purporting to appoint board members of the interested party using a repealed statute, the Cabinet Secretary for Energy has subverted the law, acted with impunity and bestowed on herself powers that she does not have, given her failure to take into account the role of the Council of County Governments in the appointment of the board members,” Mr Njoroge argues.
“ I am aware that prior to undertaking the purported appointments contained in the Gazette notices, the respondent failed to adhere to the minimum safeguards of transparency, fair competition, merit and integrity.”
The court battle comes weeks after Dr Juma lost the bid to reverse the decision of the previous board, whose term ended in February, to hire 230 workers to meet the wider mandate in the counties.
Dr Juma sought to stop the hiring of the 230 workers on accusations of nepotism and increasing REREC staff count without a budget and in breach of the law.
The Ethics and Anti-Corruption Commission (EACC) ruled out irregularities, but the Energy ministry insisted on stopping the hiring, prompting a court suit and the intervention of State House.
Dr Juma had on November 8 petitioned Head of Public Service Joseph Kinyua to maintain the freeze in parastatals under her ministry.
But Mr Kinyua overlooked the petition through the February 7 memo, which lifted a five-year hiring freeze in parastatals.
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, inching Kenya closer to the ambitious goal of universal electricity access.