CHAPTER VIII
THE PUBLIC SERVICE

Public Service Commission
7 of 1984 s. 4
4 of 1988 s. 6
17 of 1990 s. 5

106 —(1) There shall be a Public Service Commission which shall consist of a chairman, a deputy chairman and fifteen other members.

(2) The members of the Commission shall be appointed by the President.

(3) Subject to subsection (4), a person shall not be qualified to be appointed as a member of the Commission if-

(a) he is, or has at any time been, a member of the National Assembly, or he has at any time been a member of either House of the National Assembly formerly established for Kenya, a member of a Provincial Council or a Regional Assembly formerly established for Kenya or a member (other than an ex officio, an appointed or a nominated member) of any Legislative Council established for Kenya at any time before 12th December, 1963; or

(b) he is, or has at any time been, nominated as a candidate for election as a member of the National Assembly, or of a former House of the National Assembly, or of a former Provincial Council, Regional Assembly or Legislative Council; or

(c) he is, or has at any time been, the holder of an office in any political organization that sponsors or otherwise supports, or has at any time sponsored or otherwise supported, a candidate for election as a member of the National Assembly or of any such former House of the National Assembly, former Provincial Council, Regional Assembly or Legislative Council.

(4) The disqualifications referred to in subsection (3) shall cease to be disqualifications in respect of a person when Parliament has been dissolved on two occasions after that person ceased to be such a member, candidate or holder of office.

(5) Subject to subsection (7), the office of a member of the Commission shall become vacant-

(a) at the expiration of three years from the date of his appointment; or

(b) if he accepts any office the holding of which, if he were not a member of the Commission, would make him ineligible for appointment to the office of member of the Commission.

(6) The President may remove a member of the Commission from office only for failure to discharge the functions of his office (whether arising from infirmity of body or mind or from any other cause) or for misbehaviour, and shall not be so removed except in accordance with this section.

(7) A member of the Commission shall be removed from office by the President if the question of his removal from office has been referred to a tribunal appointed under subsection (8) and the tribunal has recommended to the President that he ought to be removed from office for inability as aforesaid or for misbehaviour.

(8) If the President considers that the question of removing a member of the Commission under this section ought to be investigated, then-

(a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons-

(i) who hold or have held office as judge of the High Court or judge of appeal; or

(ii) who are qualified to be appointed as judges of the High Court under section 61 (3); or

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(iii) upon whom the rank of Senior Counsel as been conferred by the President under section 17 of the Advocates Act; and

(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him whether the member ought to be removed under this section.

(9) If the question of removing a member of the Commission has been referred to a tribunal under this section, the President may suspend that member from the exercise of the functions of his office and the suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that the member should not be removed.

(c) in subsection (10), by inserting the expression, "subject to subsections (5), (7) and (9)" immediately after the words "other member shall".

(10) If the office of chairman of the Commission is vacant or the chairman is for any reason unable to exercise the functions of his office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding that office has resumed those functions, as the case may be, the deputy chairman or, if the office of deputy chairman is vacant or the deputy chairman is for any reason unable to perform the functions of the office of chairman, such one of the other members as the President may appoint shall act as chairman; and the deputy chairman or the other member shall, subject to subsections (5), (7) and (9), continue to act until a person has been appointed to the office of chairman and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has assumed or resumed those functions.

(11) If the office of a member of the Commission other than the chairman is vacant or if such a member is acting as chairman under subsection (10) or is for any other reason unable to exercise the functions of his office, the President may appoint a person who is qualified to be appointed to be a member to act in place of that member; and a person so appointed shall, subject to subsection (5), (7) and (9), continue to act until a person has been appointed to the office in which he is acting and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.

(12) Subject to this Chapter, the Commission shall, in the exercise of its functions under this Constitution, not be subject to the direction or control of any other person or authority.

(13) Subject to this Chapter, the Commission may by regulation or otherwise regulate its own procedure and, with the consent of the President, may confer powers or impose duties on any public officer or authority for the purpose of the discharge of its functions.

(14) The Commission may, subject to its rules of procedure, act notwithstanding a vacancy in its membership or the absence of a member and its proceedings shall not be invalidated by the presence or participation of a person not entitled to be present at or to participate in those proceedings:

Provided that any decision of the Commission shall require the concurrence of a majority of all the members thereof.

Appointment, etc., of public officers

7 of 1982 s. 8

7 of 1984 s. 5

107 —(1) Subject to this Constitution, the power to appoint persons to hold or act in offices in the public service and in the service of local authorities (including the power to confirm appointments), the power to exercise disciplinary control over persons holding or acting in those offices and the power to remove those persons from office shall vest in the Public.

Provided that the Commission may, with the approval of the President and subject to such conditions as it thinks fit, by directions in writing, delegate any of its powers under this section to any one or more of its members or to any officer in the public service or, in the case of appointments to the service of local authorities, to particular local authorities.

(2) Subject to this section and section 106 (12), provision may be made by or under an Act of Parliament for prescribing the manner of the exercise of the functions of the Public Service Commission under this section and for any matters incidental or supplementary to the exercise of those functions.

(3) No person shall be appointed under this section to or to act in an office on the personal staff of the President except with the concurrence of the President.

(4) Subsection (1) shall not apply in relation to any of the following offices in the public service-

(a) the office of a judge of the High Court or the Court of Appeal;

(b) the office of Attorney-General;

(c) the office of Controller and Auditor-General;

(d) so far as relates to appointments thereto or to act therein, the office of Chief Secretary, Permanent Secretary, Secretary to the Cabinet, Director of Personnel or Commissioner of Police;

(e) the office of Ambassador, High Commissioner or other principal representative of Kenya in another country;

(f) an office to which section 69 (which relates to offices within the jurisdiction of the Judicial Service Commission) applies; or

(g) an office in the Kenya Police Force to which section 108 (2) (b) applies.

Appointment, etc., of members of Kenya Police Force

108 —(1) The power to appoint a person to hold or act in offices in the Kenya Police Force (except the office of Commissioner of Police), including the power to confirm appointments, the power to exercise disciplinary control over persons holding or acting in those offices and the power to remove those persons from office shall vest-

(a) in the case of officers of or above the rank of Assistant Inspector, or such rank other than the rank of Assistant Inspector of this section by or under an Act of Parliament, in the Public Service Commission;

(b) in the case of offices below the rank of Assistant Inspector, or such other rank as may be specified as aforesaid, in the Commissioner of Police:

Provided that-

(i) the Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its powers under this section to any one or more members of the Commission or to the Commissioner;

(ii) the Commissioner may, by directions given in such manner as he thinks fit and subject to such conditions as he thinks fit, delegate any of his powers under this section to any member of the Kenya Police Force.

Attorney-General

14 of 1986 s. 4

17 of 1990 s. 6

109 —(1) The Attorney-General shall be appointed by the President.

(2) If the office of Attorney-General is vacant or if the Attorney-General is for any reason unable to exercise the functions of his office, the President may appoint a person to act as Attorney-General, and a person so appointed shall, subjects to subsections (4), (6) and (8), continue to act until a person has been appointed to the office of Attorney-General and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.

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(3) A person shall not be qualified to be appointed to hold or to act in the office of Attorney-General unless he holds and has held for a total period of not less than five years one or other of the qualifications specified in paragraphs (a), (b), (c) and (d) of section 12 (1) of the Advocates Act as in force on 12th December, 1963.

(4) Subject to subsection (6), the Attorney-General shall vacate his office when he attains such age as may be prescribed by Parliament.

(5) The Attorney-General may be removed from office only for inability to exercise the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be removed except in accordance with this section.

(6)The Attorney-General shall be removed from office by the President if the question of his removal from office has been referred to a tribunal appointed under subsection (7) and the tribunal has recommended to the President that he ought to be removed for inability as aforesaid or for misbehaviour.

(7) If the President considers that the question of removing the Attorney-General under this section ought to be investigated, then-

(a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons-

(i) who hold or have held office as judge of the High Court or judge of appeal; or

(ii) who are qualified to be appointed as judges of the High Court under section 61 (13); or

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(iii) upon whom the rank of Senior Counsel has been conferred by the President under section 17 of the Advocates Act; and

(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him whether the Attorney-General ought to be removed under this section.

(8) If the question of removing the Attorney-General has been referred to a tribunal under this section, the President may suspend the Attorney-General from the exercise of the functions of his office and any such suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that the Attorney-General should not be removed.

Controller and Auditor-General

14 of 1986 s. 5

17 of 1990 s. 6

110 —(1) The Controller and Auditor-General shall be appointed by the President.

(2) If the office of Controller and Auditor-General is vacant or if the Controller and Auditor-General is for any reason unable to exercise the functions of his office, the President may appoint a person to act as Controller and Auditor-General, and a person so appointed shall, subject to subsections (3), (5) and (7) continue to act until a person has been appointed to the office of Controller and Auditor-General and has assumed the functions of that office or, as the case may be, until the person in whose place he is acting has resumed those functions.

(3) Subject to subsection (5), the Controller and Auditor-General shall vacate his office when he attains such age as may be prescribed by Parliament.

(4) A person holding the office of Controller and Auditor-General may be removed from office only for inability to discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for misbehaviour, and shall not be so removed except in accordance with this section.

(5) The Controller and Auditor-General shall be removed from office by the President if the question of his removal from office has been referred to a tribunal appointed under subsection (6) and the tribunal has recommended to the President that he ought to be removed for inability as aforesaid or for misbehaviour.

(6) If the President considers that the question of removing the Controller and Auditor-General under this section ought to be investigated, then-

(a) the President shall appoint a tribunal which shall consist of a chairman and four other members selected by the President from among persons-

(i) who hold or have held office as judges of the High Court or judges of appeal; or

(ii) who are qualified to be appointed as judges of the High Court under section 61 (3); or

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(iii) upon whom the rank of Senior Counsel has been conferred by the President under section 17 of the Advocates Act; and

(b) the tribunal shall inquire into the matter and report on the facts thereof to the President and recommend to him whether the Controller and Auditor-General ought to be removed under this section.

(7) If the question of removing the Controller and Auditor-General has been referred to a tribunal under this section, the President may suspend the Controller and Auditor-General from the exercise of the functions of his office and any such suspension may at any time be revoked by the President, and shall in any case cease to have effect if the tribunal recommends to the President that the Controller and Auditor-General should not be removed.

Appointment of Permanent Secretaries, Ambassadors etc.

7 of 1982 s. 8

14 of 1986 s. 6

111 —(1) The power to appoint a person to hold or act in the office of Permanent Secretary, Secretary to the Cabinet or Director of Personnel shall vest in the President.

(2) The power to appoint a person to hold or act in the office of Ambassador, High Commissioner or other principal representative of Kenya in another country, and to remove from office a person holding or acting in any such office, shall vest in the President:

Provided that before exercising a power conferred by this subsection in relation to a person who holds an office in the public service, other than an office to which this subsection applies, the President shall consult the Public Services Commission.

Pensions laws and protection of pensions rights

112 —(1) The law to be applied with respect to pensions benefits that were granted to a person before 12th December, 1963 shall be the law that was in force at the date on which those benefits were granted or any law in force at a later date that is not less favourable to that person.

(2) The law to be applied with respect to pensions benefits (not being benefits to which subsection (1) applies) shall-

(a) in so far as those benefits are wholly in respect of a period of service as a public officer that commenced before 12th December, 1963, be the law that was in force on 11th December, 1963; and be the law in force on the date on which that period of service commenced,

(b) in so far as those benefits are wholly or partly in respect of a period of service a public officer that commenced after 11th December, 1963, be the law in force on the date which that period of service commenced,

or any law in force at a later date that is not less favourable to that person.

(3) Where a person is entitled to exercise an option as to which of two or more laws shall apply in this case, the law for which he opts shall, for the purposes of this section, be deemed to be more favourable to him than the other law or laws.

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(4) All pensions benefits shall (except to the extent to which, in the case of benefits under the Provident Fund Act the Widows' and Orphans' Pensions Act, the Asian Officers' Widows' and Orphans' Pensions Act and the Asian Officers' Family Pensions Act or under any law amending or replacing any of those Acts, they are a charge on a fund established by any of those Acts or by any such law and have been duly paid out of that fund to the to the person or authority to whom payment is due be charged upon the Consolidated Fund.

(5) All sums that, under any of the Acts referred to in subsection (4) or under any law amending or replacing any of those Acts, am to be paid by the Government of Kenya into a fund established by any of those Acts or by any such law or are otherwise to be paid by the Government of Kenya for the purposes of any of those Acts or any such law shall be charged upon the Consolidated Fund.

(6) A person who is entitled to the payment of pensions benefits and who is ordinarily resident outside Kenya may, within a reasonable time after he has received that payment, remit the whole of it (free from any deduction, charge or tax made or levied in respect of its remission) to any country of his choice outside Kenya:

Provided that nothing in this subsection shall be construed as preventing--

(i) the attachment by order of a court, of a payment or part of a payment to which a person is entitled in satisfaction of the judgment of a court or pending the determination of civil proceedings to which he is a party to the extent to which that attachment is permitted by the law with respect to pensions benefits that applies in the case of that person; or

(ii) the imposition of reasonable restrictions as to the manner in which a payment is to be remitted.

(7) In this section "pensions benefits" means any pensions compensation, gratuities or other like allowances for persons in respect of their service as public officers or for the widows, children, dependants or personal representatives of those persons in respect of that service.

(8) References in this section to the law with respect to pensions benefits include (without prejudice to their generality) references to the law regulating the circumstances in which those benefits may be granted or in which the grant of those benefits may be refused, the law regulating the circumstances in which any such benefits that have been granted may be withheld, reduced in amount or suspended and the law regulating the amount of any such benefits.

(9) For the purposes of this section--

(a) an office in any naval, military or air force established by or under any law made by a legislature in Kenya;

(b) to the extent to which pensions benefits in respect of service in such an office are payable under any of the Acts referred to in subsection (4) or under any law amending or replacing any of those Acts, an office in the service of the East Africa High Commission, the East African Common Services Organization or the East African Community; and

(c) an office in the service of any of the following bodies (which are bodies that are no longer in existence but in respect of former service in which pensions are payable out of Kenya funds)-

(i) the Combined Posts and Telegraphs Department of Kenya and Uganda;

(ii) the Amalgamated Posts and Telegraphs Department of Kenya, Uganda and Tanganyika;

(iii) the Customs Department (Kenya and Uganda).

(iv) the Kenya and Uganda Joint Imports Control Organization:

(v) the Joint Income Tax Department:

(vi) the Kenya Royal Naval Volunteer Reserve:

(vii) the Northern Brigade, King's African Rifles;

(viii) the Zanzibar Branch Audit Office;

(ix) the following departments of the Conference of East African Governors--

(a) the Secretariat;

(b) the British East Africa Meteorological Service;

(c) the Statistical Section;

(d) the East African Production and Supply Council;

(e) the East African War Supplies Board.

(f) the East African Directorate of Civil Aviation; and

(g) the Directorate of Training,

shall be regarded as an office in the public service.

Power to withhold pensions etc.

113 —(1) Where under any law a person or authority has a discretion-

(a) to decide whether or not any pensions benefits shall be granted; or

(b) to withhold, reduce in amount or suspend any such benefits that have been granted, those benefits shall be granted and may not be withheld, reduced in amount or suspended unless the Public Service Commission concurs in the refusal to grant the benefits or, as the case may be, in the decision to withhold them, reduce them in amount or suspend them.

(2) Where the amount of any pensions benefits that may be granted to a person is not fixed by law, the amount of the benefits to be granted to him shall be the greatest amount for which he is eligible unless the Public Service Commission concurs in his being granted benefits of a smaller amount.

(3) The Public Service Commission shall not concur under subsection (1) or subsection (2) in any action taken on the ground that a person who holds or has held the office of judge of the High Court, judge of any Court of Appeal exercising jurisdiction in Kenya, Attorney-General or Controller and Auditor-General has been guilty of misbehaviour in that office unless he has been removed from that office by reason of his misbehaviour.

(4) Before the Public Service Commission concurs under subsection (1) or subsection (2) in any action taken on the ground that a person who holds or has held any office to which, at the time of the action, section 69 applies has been guilty of misbehaviour in that office, the Public Service Commission shall consult the Judicial Service Commission.

(5) In this section "pensions benefits" means any pensions, compensation, gratuities or other similar allowances for persons in respect of their service as public officers or for the widows, children, dependants or personal representatives of those persons in respect of that service.

(6) For the purposes of this section an office shall be regarded as an office in the public service that is by virtue of Section 112 (9) regarded as an office in the public service for the purposes of that section.