Court Ruling on PSC Power to Appoint Persons In the AG Office

The Public Service Commission has welcomed the judgment by the Employment and Labour Relations Court declaring the amendments to the Office of the Attorney General Act introduced via the Statute Law (Miscellaneous Amendments) Act No. 3 of 2024 unconstitutional.

The amendments had withdrawn the constitutional powers and function of the Public Service Commission to establish offices, appoint persons, and exercise disciplinary control over officers in the Office of the Attorney General.

The judgement was delivered by the Principal Judge of the Employment and Labour Relations Court Justice Byram Ongaya on 29th May 2025.

“Declaration be and is hereby issued that the amendment of the Office of Attorney General Act vide Statute Law (Miscellaneous Amendments) Act 2024 Act No. 3 of 2024 which transferred some powers of the 3rd respondent (PSC) to Office of Attorney General is unconstitutional, null and void,” ruled Justice Ongaya.

The Judge further quashed promotions and appointments made by the Office of the Attorney General, terming them unpreadural and unconstitutional. He noted that the promotions were contrary to the Constitution, the PSC Act, CAP 185 and the PSC Regulations, 2020.

“That a declaration be and is hereby issued that the 1st Respondent (Attorney General), and 2nd Respondent (Advisory Board to the Office of the Attorney General) violated Articles 10, 27, 41, 232, 234(2) of the Constitution, Sections 36 and 37 of the PSC Act, regulations 16, 17, 18 and 20 of the PSC Regulations, 2020 by undertaking promotion of State Counsel without considering fair competition and merit, gender balance, ethnic representation and regional balance,” reads the judgment.

Further, Justice Ongaya directed PSC to monitor and evaluate the organisation, administration and personal practices in the Office of the Attorney General and report back to court its findings within three months.

“The Attorney General, Advisory Board to the Office of the Attorney General and Solicitor General are hereby directed to conclude the development of the human resource management instruments for the Office of the Attorney General within a month from the date of this judgment and submit the same to the Public Service Commission for an expeditious consideration and approval,” ruled Justice Ongaya.

The ruling was made based on a petition filed by Dr. Magare Gikenyi, Dishop Keroti Mogire, and Philemon Abiga Nyakundi, challenging the promotions of State Counsel to senior positions, including Senior Deputy Solicitor General and Deputy Solicitor General. The petitioners argued that the promotions, announced via an internal memo by the Solicitor General on November 26, 2024, violated constitutional principles of fairness, merit, and transparency.

The court agreed, finding the promotions in breach of Articles 10, 27, 41, 47, 232, and 234(2) of the Constitution, as well as provisions of the Public Service Commission Act and Regulations.

Browne Kustwa

DIRECTOR, PUBLIC COMMUNICATION

PUBLIC SERVICE COMMISSION (PSC).