Former deputy president Rigathi Gachagua speaks to the media at the home of former Kakamega senator Cleophas Malala in Kakamega County on December 29, 2024.
The Employment and Labour Relations Court in Nairobi has upheld the dismissal of the former Deputy President Rigathi Gachagua’s staff following his impeachment in October 2024.
While rejecting a petition filed by Nairobi-based lawyer Suyianka Lempaa challenging the mass sacking of the staff, Justice Hellen Wasilwa said the government did not infringe the rights of the affected staff.
The lawyer, together with the African Centre for Peace and Human Rights, had pleaded that the termination, which was preceded by compulsory leave, amounted to the politicisation of the civil service, which is supposed to be neutral and independent.
He stated that terminating workers employed by the public service because the Deputy President had fallen out with the President and was impeached implies that the workers were also impeached in a procedure not known to the law.
“The civil servants should not be the grass that suffers when most political giants lock horns,” he said in court.
Contracts pegged to tenure
The lawyer had also argued that the tenure of the government employees was not dependent on who or which regime was in power, since public officers are required to undertake their responsibilities in the best interest of the public.
“The court should take judicial notice that the office holders of the prime cabinet secretary and deputy president can change at any time. Therefore, tying the fate of any public officer to the life or fate of another human being and not office is in violation of their right to fair labour practices under Article 41 of the Constitution,” said Mr Lempaa.
But Justice Wasilwa rejected the arguments, including Mr Lempaa’s submission that the office of the Deputy President is a term of five years and the sacked workers had a legitimate expectation that their fate was not a political gamble but a civil servant fixed contract.
Save for those employed on permanent and pensionable terms of service, the judge endorsed the termination of the staff hired on contract during Mr Gachagua’s tenure.
She observed that the contract was tied to Mr Gachagua’s tenure of office and that their contracts automatically terminated when he left the office.
“It is clear that the said 61 officers were employed on local agreement terms with a provision that the contract was pegged to the tenure of office of the Deputy President Rigathi Gachagua, who has since been impeached as per the evidence adduced,” said Justice Wasilwa.
Holding that the officers were not entitled to be retained by the new office holder, the judge said the staff “signed the agreement agreeing to serve during the tenure of the former Deputy President and therefore they cannot derogate on this fact.”
She added that the contracts exhibited in court could not be ascertained and, therefore, the court could not determine if they were unfairly terminated or not.
“I do not find any constitutional infringements meted against the officers who served in the office of the former Deputy President, and therefore the orders sought cannot be granted as prayed. The entire petition lacks merit and is hereby dismissed,” she said.
The petitioner had argued that it was unlawful for the government to send the public officers in the office of the Deputy President on compulsory leave without any lawful, legal and procedural justification following the impeachment.
Civil Service neutrality debate
Mr Lempaa, together with the African Centre for Peace and Human Rights, said the decision has no legal justification and amounts to victimisation.
“The civil service owes its loyalty to the government of the day, irrespective of the political party or politician in power, and the civil service should avoid creating the impression of political bias. The anonymity and neutrality of the civil service are reinforced by rules restricting political activity,” said the lawyer.
However, the court sided with submissions of the Public Service Commission (PSC) and the Attorney-General, who argued that the category of persons hired on contract at the office of the Deputy President serve during the tenure of the office holder and are specifically employed to serve the person holding the office.
PSC stated that it was not involved in the decision to require the officers to proceed on compulsory leave following the impeachment.
The Commission’s Secretary/Chief Executive Officer, Paul Famba, said the staff employed permanent and pensionable staff could not be removed from office when there is a change of government or office holder, since they serve the government of the day.
He said the contracts ended on October 17, 2024, when Mr Gachagua was impeached “Hence, the said officers cannot proceed on any form of leave, least of all compulsory leave.”
He stated that while the permanent staff attached to the Deputy President ought to resume duty from the compulsory leave, the officers on a contractual basis, unless the impeachment of Mr Gachagua is set aside, had their contract automatically terminated on the date of impeachment.
