A plan to let county employees move from one devolved government to another without going through a fresh recruitment process has suffered a major setback after a Senate committee rejected the proposal, warning that it could allow officers to secure public jobs without competing with other qualified Kenyans.
The Senate Devolution and Intergovernmental Relations Committee wants the County Governments (Amendment) Bill, 2024, thrown out, saying its proposed inter-county transfer system does not fit the way county governments are legally structured.
The committee, chaired by Wajir Senator Sheikh Abass, said the Bill wrongly treats the 47 counties as though they were operating under one employer.
Under the proposed law, pensionable county officers would be able to move from one county public service to another while keeping their pension, leave and other benefits already earned.
Sponsored by nominated Senator George Mbugua, the Bill seeks to make it easier for counties to share experienced workers and skills by allowing officers to move between county public services without starting afresh.
Its stated purpose is to support the “seamless movement” of officers between counties and allow county governments to respond to their staffing needs by sharing skills and experience.
But the committee said an employee moving from one county to another is not being transferred within the same organisation because every county is a separate employer.
“The movement of a county public officer from one county to another is, therefore, not a transfer within a single employer but a fresh appointment by a different employer,” the committee said.
The senators said this makes the proposed transfer arrangement difficult to support because the officer would effectively be taking up a position in a different county government.
The committee further argued that allowing such officers to move directly into positions could shut out other Kenyans who would otherwise have qualified to apply for the same jobs.
It said county workers who want to move to another county already have a legal avenue to do so by applying for vacancies advertised by the county they wish to join.
“An officer wishing to serve in another county may already do so by competing for a vacancy declared and advertised by the receiving County Public Service Board,” the report states.
The committee raised particular concern over Clause 4 of the Bill, which provides for the proposed transfer arrangement.
“Clause 4 would instead create a non-competitive channel by which a serving officer could acquire a county public office never opened to other qualified Kenyans,” the committee said.
It added: “The inter-county transfer of a county public officer constitutes a fresh appointment by a distinct county employer that must be made based on fair competition and merit.”
The senators consequently recommended that Clause 4 be removed in full.
The committee also turned down a proposal to create a County Public Service Boards Consultative Forum that would bring together representatives from the public service boards of all 47 counties.
According to the committee, the proposed forum cannot be compared with the national transfer-of-service system because the national government operates under a common public service and employer.
“The committee observed that the national transfer-of-service framework under Section 43 of the Public Service Commission Act and the Public Service Commission Regulations, 2020, operates within a single public service of the republic under a common employer,” the report states.
The senators said the counties operate under a different arrangement, with every county having its own public service and an independent board responsible for appointing its employees.
“This structural precondition is absent among the 47 counties, each of which is a distinct public service under Article 235 of the Constitution and Sections 56 and 57 of the County Governments Act, with each County Public Service Board a separate body corporate appointing officers for its own county.”
The committee also questioned the need for another body to coordinate county public service issues, arguing that existing intergovernmental structures can already perform some of the proposed forum's functions.
“The establishment of the forum risked duplicating existing intergovernmental structures,” the committee said.
It pointed to Sector Working Groups and committees created under the Intergovernmental Relations Act as structures that could undertake the work proposed for the new forum.
The senators raised a further concern over the effect such a body could have on the powers given to counties under devolution.
Rather than strengthening cooperation between counties, they said, the proposed forum could create an additional central authority over county employment matters.
“The establishment of the forum would introduce a centralised layer of oversight over county public service matters in a manner that derogates from the devolved powers of county governments,” it said.
The committee's recommendations place the proposed inter-county staff transfer system in serious difficulty, with senators maintaining that experienced county employees cannot be given a separate route into jobs that must remain open to all qualified Kenyans through fair competition and merit.