References: Chapter VIII of the constitution provides for the establishment of the Public Service. Section 106 of the chapter establishes a Public Service Commission (PSC) whose 17 commissioners appointed exclusively by the president; they must never have been involved in party politics. Section 107 vests in PSC the power to appoint, confirm and discipline civil servants, a function in which it must "not be subject to the direction or control of any other person or authority (Section 106 (12)). Chapter VIII also provides for the president's appointment of the Police Commissioner (Section 108), Attorney General (Section 109), Controller and Auditor General (Section 110) and permanent secretaries and diplomats (Section 111).

Appointment to the civil service below the level of the permanent secretary is managed by the Public Service Commission which declares its vision to be: "a partner in creating a non - partisan Public Service that offers quality service and holds the nation together for socio-economic growth." See [ LINK ]

The other service commissions (judicial, police, prisons, etc) have very similar visions.

References: Besides the constitutional provisions for an objective public service, Part III (Guiding Provisions for Codes of Conduct and Ethics) of the Public Officers Ethics Act (Cap 203) addresses efficiency and honesty (Section 7), professionalism (Section 8), legality (Section 9), improper enrichment (Section 10), conflict of interest (Section 11), improper fundraising (Section 12), political neutrality (Section 15), nepotism (Section 16), private affairs (Section 19) and sexual harassment (Section 20).

With respect to recruitment, the Directorate of Personnel Management's Public Service Recruitment and Training Policy (dated May 2005) declares that recruitment will be "undertaken on the basis of meritocracy and equity..."and that selection will be "transparent, ethical... by a Committee composed of persons with appropriate expertise and of high integrity." See [ LINK ]

Following from 41a, the Public Service Commission further declares its core values to be: meritocracy, reliability, team spirit, integrity, confidentiality and fairness.

References: The Public Service Commission (PSC) deals with middle and senior level officers, while junior officers are handled by departmental bodies. The option of litigation is often beyond the reach of most officers because of the costs involved. PSC will adjudicate disputes between officers and their superiors. Officer grievances may be taken to court by individuals or through the Union of Kenyan Civil Servants.

The other service commissions serve the same purposes for the other arms of the Government, the judiciary, armed forces, police, teachers, etc..

References: Section 64(1) of the Anti Corruption and Economic Crimes Act provides that conviction disqualifies an ex-officer from holding an appointed or elected office for ten years with subsection 4 providing for names of disqualified persons to be gazetted once a year.

References: The constitutional provisions of Chapter VIII giving the president exclusive powers to appoint Public Service Commissioners and various top civil servants in a multiparty context not only leaves room for excessive subjectivity, but also manipulation of those officers. Chapter II/Part 2 of the constitution also empowers the president to appoint Cabinet ministers and their assistants under whom civil servants work. Section 24 provides that the president can constitute and abolish offices, make appointments to them and terminate the same, while Section 25 provides that all offices are held at "the pleasure of the president."

While the outgoing President had seemed to give civil servants much leeway for independence (compared to the previous president), it has become apparent that even the outgoing government unduly influenced what civil servants could be or do. Recent debates about the ethnic composition of key departments provide evidence of this. See for example, [ LINK ]

However, the PSC website has published its own appointment lists to counter allegations of corrupt appointments.

References: The Moi/KANU regime of 1978 to 2002 disdained merit for the simple reason that there were not many well-trained Kalenjins to fill key public appointments: thus, for example, a prison warder became the Managing Director of Postbank. Since 2003, while technical competence has underlain appointments, there has continued to be an ethnic bias, the saving grace being there are many more well qualified people to choose from. Appointments to key positions are politicized since they are done by the President and his "kitchen cabinet."

The extent of this problem is manifest in the despair of a Luo headmaster in Embu/Meru who in October 2007 failed in an attempt to use a ring of schoolboys to stop a helicopter carrying opposition ODM politicians landing on his school playing grounds. He promptly broke down and wept over the job he was surely going to loose for entertaining the opposition.

Peer Review Comments: The merit criteria are now getting entrenched, but they also undermine the need for balance, as not all regions have the same levels of education. Therefore, a strictly meritorious system will discriminate against communities that have traditionally suffered bias.

But lobbying is also very strong, so bias in appointments exists. Although higher qualifications are evident, it is not the case that the most highly qualified get appointed over those who meet the minimum criteria and also have powerful connections.

References: Nepotism, cronyism and other forms of corruption persist in appointments, promotions, etc., even if their extents might not be a glaring as in the previous Moi regime.

Such is especially the case with appointments at the very top and the bottom of the service, which are based on political patronage. Appointments among technocrats in the middle of the service are more merit based, even if biases are still discernable. As the government of national unity was formed after 2005, it is obvious that the new arrivals would seek to bring in their own lieutenants to replace those in place.

References: Chapter Four of the Directorate of Personnel Management's "Public Service Recruitment and Training Policy" (May 2005) states that the frameworks for performance management and targets are agreed on to improve productivity. See [ LINK ]

Kenya's public sector performance contracts were launched in 1999 and have since been implemented in much of the public sector.

References: Section 3.8/71 (iii) of "Pay Policy for the Public Service" (January 2006) provides that "the performance related component of the compensation package will be paid in the form of a performance bonus (based on) well thought out and objectively identified performance indicators." See [ LINK ]

There is no ready evidence of the extent to which such bonuses have been paid, even though performance contracts have been in place for nearly five years. Nonetheless, it is safe to say that such bonuses do not constitute more than 10 percent of neither the total wage bill nor individual take-home pay.

References: As malpractice pervaded recruitment in the public service into the 1970s, the government ceased to publish the annual "Staff List" which had summarized the full employment details of all civil servants. Presently, the indirect way of obtaining this information is to review the ministry-printed estimates of the budget, which shows authorized and in-place officers. However, various civil service censuses have revealed the existence of "ghost workers" beyond provisions.

More recently, PSC has undertaken to publish vacancies, interview shortlists and the names of successful applicants for some but not all positions. However, there continue to be complaints about transparency in recruitment into the uniformed cadre whose numbers of vacancies and names of successful applicants are not always published.

References: For officers above Job Group J, the independent mechanism is the PSC, while departmental disciplinary committees are available for more junior officers who are also allowed to belong to trades unions.

Whether PSC is objective depends on the nature of the complaint by or against the officer; but for the junior officers, departmental committees are unlikely to rule for a subordinate staffer (who can easily be transferred elsewhere) against a department head. In a recent case of revelations of malpractice at the Electoral Commission of Kenya, it is unlikely that were the alleged moles to be taken to a disciplinary hearing, they would get a fair trial.

References: The timeliness of salary payments has improved from the years when payments to teachers could be as late as three months. However, problems persist among local authorities which have narrow revenue bases. Nairobi City Council workers often taking to the streets in protest despite theirs being the authority with the largest revenue potential. Timeliness of payments is likely to improve as we move deeper into the performance contract era.

Peer Review Comments: Payment on time is not an issue now.

References: Section 64 (1) of the Anti-Corruption and Economic Crimes Act (2003) provides that convicted officers must not hold office for at least 10 years, while subsection (3) makes the provision not retrogressive.

Since the law came into force, some officers have been affected. However, the Government has appeared to be lenient in this respect. For example, two cabinet ministers who were stood down in the Anglo Leasing Scandal have been reinstated even before the cases against their alleged co-conspirator civil servants have been finalized. This suggests the cases against the civil servants are as good as shelved. See [ LINK ]

Peer Review Comments: While there are people serving in the government who have been accused of corruption, none has been convicted. It is highly unlikely that a person convicted and jailed or fined for corruption could be employed by the government. The government may shield one from conviction, but once convicted, one can no longer serve.

References: Section 11 (1) of the Public Officers Ethics Act (2003) requires that public officers avoid conflict between personal interests and official duties. Section 11 (3) requires such an officer to declare such a conflict to his/her superior officer or other appropriate body, and to comply with given directions. Personal interests extend to spouses, relatives, business associates and any body in which the officer has an interest. Section 42 (3) of the Anti-Corruption and Economic Crimes Act also adjudges a public agent guilty of an offense if he or she "knowingly acquires or holds, directly or indirectly, a private interest in any contract, agreement or investment emanating from or connected with the public body."

References: Not only are there no such legal restrictions, but serving public officers are allowed to have private sector interests, such as directorships. This freedom arises from a mid-1960s commission of inquiry - the Ndegwa Report - recommendation that argued that the cream of newly independent Kenya's educated elite were needed in both sectors. Much of Kenya's rampant corruption is blamed on the report. Indeed, many of the original civil servants who benefited from the provision are the main actors in contemporary politics.

References: Section 10 (2) a, an officer shall not accept gifts or favors from a person with an interest that may be affected by the officer's conduct of duties, or undertakes regulated duties for or has a contractual arrangement with the officer's organization. However, Section 10 (3) allows gifts of ornaments or souvenirs, while subsection (4) exempts gifts given by relatives or friends in cultural occasions.

References: There are no such regulations. Former civil servants can go into the private sector at will, while many active civil servants have extensive private sector interests, especially because real civil service wages are so modest. Indeed, the private sector often head hunts the cream of the civil service.

References: As in other arms of the government, these regulations are impossible to uphold because the dividing line between gifts/hospitality and bribery is clouded by cultural values. Thus, officers resolving disputes will be entertained by either or both litigants, often to no one's consternation.

Peer Review Comments: Indeed, all the parties involved in gift giving are aware that they hope to get favors in return.

References: While in the judiciary it is common to read of judges removing themselves from cases where there is conflict of interest, there is no publicly accessible documentation of the extent to which this happens in the civil service. On the contrary, there are many overt instances where public officers push the interests of friends and relatives to the front of the queue, such as at police stations, immigration and customs departments, registrars' offices, etc. This is an expectation of the extended family system in Africa.

Peer Review Comments: Patronage is well-entrenched. Indeed, one's success as a businessman depends on the extent to which one has connections with civil servants, and they also depend on businessmen to reciprocate.

This is not really a reflection of the extended family system, but a failure of ethics and systems of checks and balances. African societies have no traditions of injustice and extending favors at the expense of others. Patronage systems are indeed entrenched in many African countries, but they are the result of a lack of governance institutions that stems back to the colonial period, not a reflection of the culture.

References: Section 29 (1) to (3) of the Public Officers Ethics Act applies. Any commission or its agents are forbidden from receiving wealth/asset declarations and from divulging the contents to anyone other than the provider, their representative or a person identified by a High Court order. Where such information has been acquired contrary to the provisions above, it may not even be disclosed by a third party. This offense is punishable by a fine of up to K Sh 2 million (US $30,000), a prison term of up to two years or both.

References: The law imposes a heavy fine on anyone accessing such records, meaning that only an adventurous investigative journalist might dare do so. However, some assets of such officers can be tracked through agencies such as the land registry, company registry, etc.

References: Since citizens cannot access such information legally, the costs implied are not pertinent.