Kenya: Labour Court Suspends Interviews for New Data Commissioner Position

The Labour court has ordered the government to suspend the ongoing recruitment of Data Commissioner pending hearing and determination of a petition filed by lawyer Adrian Kamotho.

The order issued Tuesday by judge Hellen Wasilwa is directed to the Public Service Commission (PSC) and the Attorney-General.

The commission had started conducting interviews of the shortlisted candidates Tuesday morning

The judge allowed the lawyer to file a judicial review application seeking to quash list of applicants and shortlisted candidates for the position of Data Commissioner.

In the petition certified urgent by the court, the lawyer says the recruitment process is defective and irredeemably tainted with illegality.

He said PSC casually disregarded queries about the recruitment process and that the methodology and system used to shortlist applicants is unknown to law as it contravenes the rules of natural justice.

"The scheduling of interviews for the July 7 by the PSC, more than two months after the statutory deadline, exceeds legal jurisdiction and amounts to abuse of power. PSC is openly acting ultra vires and with unbridled impunity by proceeding to preside over a manifestly flawed process," Mr Kamotho says.

The lawyer cites Section 6 (3) of the Data Protection Act, 2019 which imposes a mandatory duty upon the PSC to conclude its statutory role within 21 days.

"PSC has no power whatsoever to enlarge statutory timelines nor to disregard the same hence its current actions are extremely arbitrary and anarchical," he explains.

The declaration of vacancy for the position of Data Commissioner was published on March 25, this year by the PSC and stipulated April 14 as the last day of tendering applications for those interested in the position.

Mr Kamotho was among those who applied for the job but he was not shortlisted among those to be interviewed for the job. The list of applicants was published on June 25.

He states that despite the constitution requiring the PSC to be accountable for administrative acts, his efforts to seek an explanation have not been responded to.

The lawyer also argues that though the PSC Act, 2017 requires the commission to maintain minutes of all proceedings of meetings, it has refused to tender the minutes that culminated in the shortlisting of Data Commissioner applicants.

"The actions of PSC disclose underhand motives and a relentless struggle to influence the recruitment outcome in favour of a particular candidate," says Mr Kamotho in the petition.

Justice Wasilwa directed Mr Kamotho to serve the PSC and the Attorney General with the court papers while hearing of the case was fixed to start on July 14.

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