The recruitment of a substantive managing director for the Kenya Ports Authority (KPA) can now go on after the court dismissed a petition challenging the process.
Justice James Rika of the Employment and Labour Relations Court set aside the petition by the Commission for Human Rights and Justice (CHRJ) saying it lacked merit.
The judge explained on Friday that the human rights organisation did not provide evidence to prove that the KPA board of directors had failed in its oversight role since no audit report was presented implicating it or past MDs in alleged acts of monumental sleaze.
"The petitioner needed to exhibit some evidential material showing loss of trust in the board. It is not enough to make a bare allegation about loss of trust," said Justice Rika.
The board has received more than 150 applications for the position yet only three will be forwarded to the Transport Cabinet Secretary for consideration.
The CHRJ sued the board, Transport CS and the Attorney-General seeking a declaration that the board’s decision to conduct interviews without prior public participation was unconstitutional. The Dock Workers Union was an interested party in the suit.
Justice Rika said the appointment is a highly specialised undertaking which is best discharged by technocrats - the board and human resources expert committees it deems fit to assist.
"The board and the committees involved in the process are, in view of the court, well equipped to ensure the process meets the demands for transparency and accountability to the public," said Justice Rika.
The court further ruled that it was clear the respondents had, while employing the legal framework and instruments of governance at their disposal, adequately satisfied the requirements for public participation.
It also noted that the union representing a large number of people confirmed it had been informed of the recruitment process and had given it a clean bill of health.
"There is no reason for the court to assume that the petitioner's voice should be heard over and above other genuine public participants such as the Dock Workers Union, who confirm it has publicly participated and continues to participate in the recruitment of MD," said Justice Rika.
The court also said televising the interviews does not add value to the fulfilment of the public participation obligation.
Justice Rika said the board has taken adequate measures to ensure the process meets the demands of transparency and accountability to the public.
"The respondents have balanced the requirement for public participation against the legally mandated requirement for a technocratic recruitment process," said Justice Rika.
Through lawyer Augustus Wafula, the board had opposed the petition arguing that stakeholders’ meetings, discussions and communication constitute public participation.
It told the court that it comprises stakeholders from the shipping industry and the larger economy.
According to the CHRJ, the deadline for applying for the position of MD lapsed on April 24 and since then, the board had not published the list applicants or communicated to the public about it.
The organisation argued that the holder of the position in a large entity such as the KPA must be selected through an exercise that is open, fair and of integrity in order to achieve public confidence.
CHRJ also sought an order for the board to publish the entire list of applicants in at least two newspapers, inviting stakeholders and members of the public to present their views on them.
It also wanted an order mandating the board to hold the interviews live on television for transparency and accountability.
Also sought was an order for the board to publish the outcome of the interviews on its website and newspapers within seven days after closing the process.