- Rights activist Okiya Omtatah has moved to court to challenge the decision of the Parliamentary Service Commission (PSC) to reappoint National Assembly clerk Micheal Sialai instead of retiring him.
- In the case filed at the Employment and Labour Relations Court in Nairobi and certified urgent, the activist says Mr Sialai’s reappointment on a contractual basis is illegal.
Rights activist Okiya Omtatah has moved to court to challenge the decision of the Parliamentary Service Commission (PSC) to reappoint National Assembly clerk Micheal Sialai instead of retiring him.
In the case filed at the Employment and Labour Relations Court in Nairobi and certified urgent, the activist says Mr Sialai’s reappointment on a contractual basis is illegal because he would attain the mandatory retirement age of 60 on May 25, 2021.
Mr Omtatah says on April 7, 2021, the PSC — in its 291st meeting — resolved to retain Mr Sialai on contract with effect from May 26, 2021, to July 31, 2022.
He claims that the PSC decision was based on the argument that it wants Mr Sialai to midwife the National Assembly debates on the proposed Building Bridges Initiative (BBI) constitutional amendments and to ensure a smooth transition between the current and the next Parliaments.
The activist is aggrieved that the reappointment of Mr Sialai was without the approval of the House and upon retirement, hence it is unconstitutional and illegal for breaching express provisions of Article 128(1) of the Constitution as well as sections 26, 27 and 36 of the Parliamentary Service Act. He argues that the contract is still subject to the law because the person so appointed will be the substantive Clerk of the National Assembly for the contract period.
In the petition, Mr Omtatah said the PSC decision to retain the Clerk violates a resolution made by its board of senior management in March 2015 that positions of directors, deputy clerks and clerks of the two Houses should be advertised through an external recruitment agency six months before the position falls vacant.
“If the commission had commenced the competitive recruitment process for Mr Sialai’s successor in December 2020, some six months to his May 25, 2021 retirement date, a new Clerk would have been appointed some 13 months to the August 2022 General Election,” he says.
On the argument that PSC retained Mr Sialai to ensure a smooth transition in light of the proposed constitutional amendments, Mr Omtatah says that reasoning flies in the face of previous appointments.
to the office of the Clerk which were done closer to a transition.
For instance, Mr Omtatah says in December 2012 Mr Patrick Gichohi retired upon attaining the age of 60 years and the PSC, through a competitive recruitment process undertaken externally by PriceWaterHouseCoopers (PWC), and with the approval of the National Assembly, recruited the late Justin Bundi in October 2012.
"This was during a critical constitutional transition period from a unicameral to a bi-cameral Parliament. It was also only five months before the March 2013 general elections. The PSC did not extend Mr Gichohi’s term," says the actvist.
In 2017, when the late Bundi was due to retire on March 21, 2017, the PSC advertised the vacancy in the position some six months earlier and recruited Mr Sialai four months to the August 2017 general elections. The PSC did not extend Bundi’s tenure so he could oversee the transition from the Eleventh to Twelveth Parliaments.
He wants court to quash Mr Sialai's reappointment and order the PSC to immediately commence the recruitment of substantive clerk.
Mr Omtatah further wants the court to issue a permanent injunction prohibiting Mr Sialai from assuming the office of the clerk when his retirement age reaches on May 26.
"The National Assembly has two able Deputy Clerks who were competitively recruited by the PSC on merit, and who can act as Clerk to ensure a smooth transition during the recruitment of a substantive Clerk. These are Jeremiah Ndombi who was appointed in 2017, and Serah Kioko who was appointed in 2018," reads the 15-page petition.
The case is slated to come up for mention on May 6 before justice Maureen Onyango.