The recent sacking of Dr. Josephine Mburu, the Principal Secretary in the State Department for Public Health and Professional Standards, has raised questions on what the procedure for dismissing a PS is.
Article 155 of the Constitution which spells out the role, nomination, appointment and even resignation of a Principal Secretary, conspicuously leaves out how they would be fired.
Though the President under Art 132 (2) can dismiss a principal secretary along with other offices, it should be done in accordance with Article 155. Incidentally, the Article doesn’t provide the manner of dismissal of a Principal Secretary.
However, a case where former Public Service and Youth Principal Secretary Lillian Omollo, sued the Cabinet Secretary for Public Service and Gender as well as the Attorney General over her dismissal, would offer some clarity on this.
In October 2020 the Employment And Labour Relations Court found that a Principal Secretary is entitled to the protections granted to public officers by Article 236 of the Constitution.
Because the office of principal secretary is an office in the public service, they are deemed a public officer. Therefore Article 236 of the Constitution addresses the protection of public officers would apply to PSs. The second part of the article clearly stating the due process of the law should be followed in the dismissal of a public officer.
Several legal documents and an article in the Constitution lend guidance on what due process would look like. For instance, Section 41 (2) of the Employment Act makes it mandatory that before terminating the employment of an employee, an employer must hear and consider any presentation which the employee may make.
Article 47 of the Constitution that handles Fair Administrative Action states an individual has the right to be given written reasons for the administrative action if their rights or freedoms were affected in the process.
Further supporting this, is the Fair Administrative Action Act of 2015 which dedicates 17 sections to addressing termination and dismissal.