Sh1 unfair sacking award rubs salt to Omollo’s wound

When former Youth and Gender PS Lillian Omollo left her well-paying job at the New Partnership for Africa Development (Nepad) in 2015 to join the Jubilee government, she probably never thought things would take a turn for the worst.

From fighting claims of abuse of office and corruption charges in court to grappling with a decision forfeiting more than Sh33 million to the government deemed to be proceeds of crime, which she argues were her savings, the amiable former PS has seen bad days in the past two years.

The trips she has made to Milimani Law Courts since she was charged in 2018, for the hearing of the criminal cases, are countless. But she has vowed to soldier on.

So when the government decided in May to strike her name from the payroll, she would not give up easily. Ms Omollo immediately launched a court battle, arguing that the decision by Public Service secretary Margaret Kobia was illegal.

Spirited fight

And she won the case this week. Sad though, the award for the spirited fight was so humble, leaving more questions more than answers.

Justice Stephen Radido, who heard the matter agreed that the removal of her name from the government payroll was unconstitutional. The judge, however, awarded her Sh1 for the breach of her constitutional rights.

“The petitioner was not subjected to due process, nor was she given reasons for the removal from office under the hand of the President. She was ingeniously notified that her tenure had ended because a replacement had been appointed,” the judge said.

Justice Radido said public officers have a legitimate expectation that being public officers, due process as envisaged under Article 236 of the Constitution would be observed in the process of their removal from office.

Justice Radido, however, said because Ms Omollo, who is currently battling corruption charges, was found to have unexplained wealth, the amount awarded was adequate compensation for the violation of her right to due process.

The former PS is facing charges together with former National Youth Service director-general Richard Ndubai and a host of civil servants over the alleged loss of funds at the agency.

Last year, Justice Mumbi Ngugi found that Sh33 million which she had saved in several accounts were proceeds of crime and ordered it forfeited to the government.

But the former PS has appealed the decision, arguing that Justice Ngugi erred in law by allowing the forfeiture application without evidence and legal soundness.

She argued that the judge misapplied the court’s discretion by failing to consider its stated position that civil forfeiture applications are not meant to penalise her.

She argued that the Asset Recovery Agency did not show that public funds were lost at the NYS because it did not adduce such proof, whether an investigative report or by other evidence.

She said the Auditor-General’s report dated April 24, 2018, confirmed that there were no unresolved audit matters or pending audit queries in her former docket.

She also argued that the judge was wrong to conclude that her funds in the accounts were deposited in trenches of between Sh500,000 to Sh950,000, yet there was no evidence to back it.

Latest case

Documents filed in court state that the amounts were deposited between January 2016 and March 2018.

Ms Omollo was appointed PS for Public Service, Youth and Gender Affairs on December 18, 2015.

Part of her defence was that the money was the proceeds from her Uyoma farm in Rarieda, Siaya County and part of her salary, some of which she earned before joining the government.

Ms Omollo added that the money was her salary and her gratuity she was paid after leaving her job at Nepad.

In the latest case, Ms Omollo argued that she was still presumed innocent and was entitled to half her salary, pending the conclusion of the corruption case.

Evidence in court was that she was appointed PS for Public Service and Youth in December 2015.

On the Jubilee’s re-election for the second term, she was retained as PS, but the term was short-lived as she was charged with corruption among other offences in 2018.

As required by law, she was notified of her suspension on half-salary pending the finalisation of the criminal charges.

But in May 2020, the Public Service minister wrote to her that her appointment had lapsed with the appointment of another person as the Gender PS.

The decision prompted her to move to court, seeking among other orders, that the revocation of her appointment is unconstitutional.

She also sought service gratuity at the rate of 31 per cent of the basic remuneration package for the term served and restoration of all her withheld salary and allowances for the years under suspension.

Legitimate expectation

Ms Omollo also sought general damages for the breach of her constitutional rights and the right to legitimate expectation.

In reply, the government said, being a presidential appointee, Ms Omollo held an office of public trust. And because she had been charged with corruption offences, she was suspended as expected under section 62 of the Anti-Corruption and Economic Crimes Act.

The court said her right to be presumed innocent was not violated when she was suspended following her arraignment.

Justice Radido said although the President has the power to remove a PS, Article 135 of the Constitution requires such decisions to be made and reasons were given.

But in Ms Omollo’s case, the government did not give the reasons.

“Once a person has been appointed as a Principal Secretary, he or she becomes a public officer. As such public officer, the Principal Secretary becomes entitled to the protections assured all public officers by Article 236 of the Constitution,” the judge said.