Public Service Commission’s Mandate under Article 234 of the Constitution Affirmed Against Usurpation by the State Corporations Advisory Committee through Unlawful Interference in Human Resource Governance and the Attorney-General’s Advisory Opinion

Githongo & another v State Corporations Advisory Committee & another; Public Service Commission & 2 others (Interested Parties) (Petition E303 & E026 of 2023 (Consolidated)) [2025] KEHC 18054 (KLR) (Constitutional and Human Rights) (5 December 2025) (Judgment

Delivered on December  5 2025 by Justice  L. N. Mugambi

Background

The petitions (E303 & E026 of 2023) were filed by John Githongo and the Katiba Institute challenging two documents first an advisory letter dated  July 27 2023 from the Attorney General (A.G.) and secondly a circular letter dated August 8  2023 from the State Corporations Advisory Committee (SCAC).Petitioners argued these documents unlawfully usurped the Public Service Commission’s (PSC) constitutional mandate under Article 234 of the Constitution. Reliefs sought included declarations that PSC had exclusive authority to establish/abolish offices, approve HR instruments, regulate personnel activities in the public service (including state corporations and public universities), and that SCAC’s role was purely advisory. They also sought clarification that SRC must channel its advice through PSC and that AG’s advisories were not binding on constitutional commissions.

Issues for Determination

The Court was to determine various  issues .First issue for determination was whether the Attorney General’s advisory letter of  July 27  2023 was unconstitutional as it undermined PSC’s constitutional mandate under Article 234.Second issue  for determination was whether the SCAC circular of  August 8 2023 was ultra vires as SCAC exceed its statutory powers under section 27 of the State Corporations Act by issuing HR-related directives. The third issue for determination  was the scope of PSC’s mandate under Article 234 of the Constitution as to whether  PSC have authority to establish/abolish offices, approve HR instruments, and regulate HR in state corporations and public universities?. The fourth issue for determination  was whether SRC could directly advise state corporations and public universities or must such advice be routed through PSC under Article 230(4)(b).The fifth issue  for determination was whether SCAC’s role was purely advisory or whether it could  issue binding guidelines on HR management. The 6^th and the  final issue was whether AG’s advisories was binding on constitutional commissions and independent offices in light of Article 249(2)(b) of the Constitution.

Court’s Determination

On first   issue whether the Attorney General’s advisory letter of July 27 2023 was unconstitutional for undermining PSC’s mandate under Article 234, the Court held that the Attorney General’s advisory letter was unconstitutional and legally infirm  to the extent that it purported to direct or determine matters falling within the exclusive constitutional mandate of the Public Service Commission (PSC).The court reasoned that under Article 234, PSC had a direct constitutional mandate over human resource management in the public service. While the Attorney General was the principal legal adviser to the Government under Article 156, that role did not extend to issuing binding directions to constitutional commissions. The advisory letter effectively sought to reallocate or dilute PSC’s powers, there by violating Article 249(2)(b) which guarantees the independence of constitutional commissions.

On second  issue of whether the SCAC circular of  August 8 2023 was ultra vires section 27 of the State Corporations Act, the Court found that the SCAC circular was  ultra vires, unlawful, and unconstitutional. The court reasoned that  section 27 of the State Corporations Act  limited SCAC’s role to  advisory functions on matters of governance and performance issuing HR-related directives, including instructions on establishment, staff control, and remuneration structures, went beyond advisory oversight. Such directives intruded into functions constitutionally assigned to PSC and SRC.

On third  issue whether on   the  scope of PSC’s mandate under Article 234 (authority over HR in state corporations and public universities),the Court affirmed that PSC’s mandate was broad and overarching  in matters of human resource management across the public service, including state corporations and public universities, unless expressly excluded by the Constitution. PSC had authority to establish and abolish offices in the public service, approve human resource policies, instruments, and  exercise disciplinary control and overall HR regulation.

On fourth issue on  whether SRC may directly advise state corporations and public universities or must route advice through PSC under Article 230(4)(b) ,the Court held that SRC could not  bypass PSC in advising state corporations and public universities on remuneration and benefits where such advice impacts HR administration. The Court reasoned that Article 230(4)(b) mandated SRC to advise on remuneration for public officers, but implementation must respect PSC’s coordinating role. Direct engagement by SRC without PSC coordination created institutional conflict and undermines constitutional design.

On fifth   issue on whether SCAC’s role was purely advisory or includes issuing binding HR guideline, the Court unequivocally held that SCAC’s role was purely advisory. Neither the State Corporations Act nor the Constitution granted SCAC regulatory or directive authority over HR matters. Binding HR guidelines would amount to usurpation of PSC’s constitutional mandate’s could not  issue binding guidelines, particularly on HR management.

On last issue  on whether Attorney General’s advisories are binding on constitutional commissions and independent offices under Article 249(2) ,the Court held that Attorney General’s advisories were  not binding on constitutional commissions and independent offices. Article 249(2)(b) expressly protected commissions from  direction or control by any person or authority, accepting AG advisories as binding would negate constitutional independence. AG advisories why thus persuasive at best , not mandatory, and cannot override constitutional mandates.

The court thus in its overall disposition of the case held and   declared the impugned AG advisory and SCAC circular unconstitutional and void reaffirming  the central role of PSC in HR governance in the public service.