High Court Declares Appointment of Anti-Counterfeit Agency Inspectors Unconstitutional

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“In my view fresh appointments to the positions of inspectors must be open to the public and such positions must be advertised. It therefore does not matter whether the interested parties were handpicked by the Board or Mr Igathe [Former Chairman of ACA Board of Directors]. The era of handpicking persons and appointing them as public officers was in my view buried with the retired Constitution and has no place in the current constitutional dispensation.” – Odunga J at para. 39.

In a recent judgment in the case of Republic v Anti-Counterfeit Agency Ex parte Moses Maina Maturu [2016] eKLR, the High Court quashed Gazette Notice No. 9451 published on 24th December, 2015 appointing several individuals (enjoined in the suit as interested parties) as inspectors of Anti-Counterfeit Agency (ACA). According to ACA, the present suit was a scheme to paralyze its operations instigated by persons who have been behind several court cases, which ACA has been forced to defend thereby directing its resources away from the fight against counterfeiting.

In a previous post here, we highlighted several irregularities in ACA appointments of inspectors in the broader context of an apparent power struggle between various interests within ACA and possibly involving one or more external actors.

In the present case, the applicant tabled in court a board paper allegedly prepared by ACA CEO Dr. John Akoten in which Akoten was allegedly blaming Mr. Polycarp Igathe, the then chairman of the Board of Directors of ACA for single handedly pushing through the appointments and gazettement contested in the case.

In the court’s view, notwithstanding the powers of appointment of ACA inspectors being vested in the ACA Board, on appointment the inspectors become public officers since section 2 of the Leadership and Integrity Act defines a “public officer” as having the meaning assigned to it under Article 260 of the Constitution. As such, Article 232 are applicable to the appointment of anti-counterfeit inspectors.

Under Article 232 of the Constitution, the values and principles of public service include high standards of professional ethics; efficient, effective and economic use of resources; responsive, prompt, effective, impartial and equitable provision of services; involvement of the people in the process of policy making; accountability for administrative acts; transparency and provision to the public of timely, accurate information; and subject to affording adequate and equal opportunities for appointment, training and advancement, at all levels of men and women, the members of all ethnic groups and persons with disabilities; fair competition and merit as the basis of appointments and promotions. According to the court, these values and principles of public service apply to public service in all State organs in both levels of government and all State corporations, including ACA.

In its determination of the unconstitutionality of the ACA appointments in question, the court’s judgment reads in part as follows:

“Good governance, it is my view, can only be achieved when the persons who are qualified to perform the tasks for which they are appointed are the ones considered for such positions. In my view even the mandatory Constitutional considerations of gender, ethnic and regional balancing ought not to be an excuse for compromising on the quality of services being rendered to the people of Kenya. In other words, fair competition and merit, representation of Kenya’s diverse communities, affording adequate and equal opportunities to men and women, the members of all ethnic groups and persons with disabilities are all factors which must be considered in promotions and appointments.

Whereas the Board has the power to appoint inspectors of the Anti-Counterfeit Agency, the appointments have to be in compliance with the Constitution and the relevant Legislation since, the Board in undertaking its executive functions does so on behalf of the people of the Republic of Kenya and has to bow to the will of Kenyans as expressed in their document delegating their sovereign powers to inter alia the executive, the Constitution. It is the Constitution which sets out the terms under which the delegated sovereign power is to be exercised and those to whom the power is delegated must adhere to it and where certain powers are not expressly delegated, resort must be had to the people by way of a referendum.”

In light of the above, the court quashed the gazette notice containing the appointment of anti-counterfeit inspectors and ordered ACA to pay the costs of the suit to the applicant in the case.

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