-
-
106
-
Public Service Commission.
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107
-
Appointments etc. of Public Officers .
-
108
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Appointment, etc. of Members of Kenya as Police Force.
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109
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Attorney General.
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112
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Pensions Laws and Protection of Pension Rights.
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113
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Power to Withhold Pensions, etc.
106. (1) There shall be a Public Service Commission
which shall consist of a chairman, a deputy chairman and
fifteen other members.
(2) The members of the Commission shall be appointed
by the President.
(3) Subject to subsection (4), a person shall not be
qualified to be appointed as a member of the Commission if-
(a)
he is, or has at any time been, a member of the
National Assembly, or he has at any time been a
member of either House of the National Assembly
formerly established for Kenya, a member of a
Provincial Council or a Regional Assembly formerly
established for Kenya or a member (other than an
ex officio, an appointed or a nominated member) of
any Legislative Council established for Kenya at any
time before 12th December, 1963; or
(b) he is, or has at any time been, nominated as a candidate
for election as a member of the National
Assembly, or of a former House of the National
Assembly, or of a former Provincial Council,
Regional Assembly or Legislative Council; or
(c) he is, or has at any time been, the holder of an office
in any political organization that sponsors or otherwise
supports, or has at any time sponsored or
otherwise supported, a candidate for election as a
member of the National Assembly or of any such
former House of the National Assembly, former
Provincial Council, Regional Assembly or Legislative
Council.
(4) The disqualifications referred to in subsection (3) shall
cease to be disqualifications in respect of a person when Parliament
has been dissolved on two occasions after that person
ceased to be such a member, candidate or holder of office.
(5) Subject to subsection (7), the office of a member of the Commission shall became vacant-
(a) at expiration of three years from the date of his appointment; or
(b) if he accepts any office the holding of which, if he were not a member of the Commission, whould make
him inneligible for appointment to the office of member of the Comission.
(6) The President may remove a member of the Commission
from office only for failure to discharge the functions
of his office (whether arising from infirmity of body or mind
or from any other cause) or for misbehavior, and shall not be
so removed except in accordance with this section.
(7) A member of the Commission shall be removed from
office by the President if the question of his removal from
office has been referred to a tribunal appointed under sub
section (8) and the tribunal has recommended to the President
that he onght to be removed from office for inability as
aforesaid or for misbehaviour.
(8) If the President considers that the question of removing a member of the Commission under this section ought
to be investigated, then-
(a) the President shall appoint a tribunal which shall
consist of a chairman and four other members selected by the Presidentt from among persons-
(i) who hold or have held office as judge of the High
Court or judge of appeal; or
(ii) who are qualified to be appointed as judges of
the High Court under section 61 (3); or
(iii) upon whom the rank of Senior Counsel has been
conferred by the President under section 17 of
the Advocates Act; and
(b) the tribunal shall inquire into the matter and report
on the facts thereof to the President and recommend
to him whether the member ought to be removed
under this section.
(9) If the question of removing a member of the Commission has been referred to a tribunal under this section, the
President may suspend that member from the exercise of the
functions of his office and the suspension may at any time be
revoked by the President, and shall in any case cease to have
effect if the tribunal recommends to the President that the
member should not be runoved.
(c) in this subsection (10), by inserting the expression", subject
to subsections (5), (7) and (9)" immediately after the
words "other member shall".
(10) If the office of chairman of the Commission is vacant
or the chairman is for any reason unable to exercise the functions of his office, then, until a person has been
appointed to
and has assumed the functions of that office or until the person holding that office has resumed those
functions....(a word or two missing)
...may be, the deputy chairman or, if the office of deputy chair-
man is vacant or the deputy chairman is for any reason unable
to perform the functions of the office of chairman, such one
of the other members as the President may appoint shall act
as chairman; and the deputy chairman or the other member
shall, subject to subsections (5), (7) and (9), continue to act
until a person has been appointed to the office of chairman
and has assumed the functions of that office or, as the case
may be. until the person in whose place he is acting has
assumed or resumed those functions.
(11) If the office of a member of the Commission other
than the chairman is vacant or if such a member is acting as
chairman under subsection (10) or is for any other reason unable to exercise the functions of his office, the
President may
appoint a person who is qualified to be appointed to be a
member to act in place of that member; and a person so
appointed shall, subject to subsections (5), (7) and (9), continue
to act until a person has been appointed to the office in which
he is acting and has assumed the functions of that office or, as
the case may be, until the person in whose place he is acting
has resumed those functions.
(12) Subject to this Chapter, the Commission shall, in the
exercise of its functions under this Constitution, not be subject
to the direction or control of any other person or authority.
(13) Subject to this Chapter, the Commission may by
regulation or otherwise regulate its own procedure and, with
the consent of the President, may confer powers or impose
duties on any public officer or authority for the purpose of
the discharge of its functions.
(14) The Commission may, subject to its rules of procedure, act notwithstanding a vacancy in its membership
or the absence of a member and its proceedings shall not
be invalidated by the presence or participation of a person
not entitled to be present at or to participate in those
proceedings:
Provided that any decision of the Commission shall
require the concurrence of a majority of all the members
thereof.
Appointment etc., of public officers
107. (1) Subject to this Constitution, the power to appoint
persons to hold or act in offices in the public service and in
the service of local authorities (including the power to confirm
appointments), the power to exercise disciplinary control over
persons holding or acting in those offices and the power to
remove those persons from office shall vest in the Public
Service Commission:
Provided that the Commission may, with the approval of
the President and subject to such conditions as it thinks fit, by
directions in writing, deligate any of its powers under this
section to any one or more of its members or to any officer in
the public service or, in the case of appointments to the
service of local authorities, to particular local authorities.
(2) Subject to this section and section 106 (12), provision
may be made by or under an Act of Parliament for prescribing
the manner of the exercise of the functions of the Public
Service Commission under this section and for any matters
incidental or supplementary to the exercise of those functions.
(3) No person shall be appointed under this section to or
to act in an office on the personal staff of the President except
with the concurrence of the President.
(4) Subsection (1) shall not apply in relation to any of the
following offices in the public service-
(a) the office of a judge of the High Court or the Court
of Appeal;
(b) the office of Attomey-General
(c) the office of Controller and Auditor-General
(d) so fat as relates to appointments thereto or to act
therein, the office of Chief Secretary, Permanent
Secretary, Secretary to the Cabinet, Director of
Personnel or Commissioner of Police;
(e) the office of Ambassador, High Commissioner or other
principal representative of Kenya in another
country;
(f) an office to which section 69 (which relates to offices
within the jurisdiction of the Judicial Service Commission) applies; or
(g) an office in the Kenya Police Force to which section 108 (2) (b) applies.
Appointment etc., of members of Kenya Police Force
108. (1) The power to appoint a person to hold or act in
the office of Commissioner of Police shall vest in the President.
(2) The power to appoint persons to hold or act in offices
in the Kenya Police Force (except the office of Commissioner
of Police), including the power to confirm appointments, the
power to exercise disciplinary control over persons holding or
acting in those offices and the power to remove those persons
from office shall vest-
(a) in the case of offices of or above the rank of Assistant
Inspector, or such rank other than the rank of Assist-
ant Inspector as may be specified for the purposes
of this section by or under an Act of Parliament, in
the Public Service Commission;
(b) in the case of offices below the rank of Assistant
Inspector, or such other rank as may be specified as
aforesaid, in the Commissioner of Police:
Provided that-
(i) the Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate
any
of its powers under this section to any one or more
members of the Commission or to the Commissioner;
(ii) the Commissioner may, by directions given in such
manner as he thinks fit and subject to such conditions
as he thinks fit, delegate any of his powers under this
section to any member of the Kenya Police Force.
Attoney-General
109. (1) The Attorney-General shall be appointed by the
President.
(2) If the office of Attorney-General is vacant or if the
Attorney-General is for any reason unable to exercise the functions of his office, the President may appoint a
person to act
as Attorney-General, and a person so appointed shall, subjects to subsections (4), (6) and (8), continue to act until a
person has been appointed to the office of Attorney-General
and has assumed the functions of that office or, as the case
may be, until the person in whose place he is acting has
resumed those functions.
(3) A person shall not be qualified to be appointed to
hold or to act in the office of Attorney-General unless he holds
and has held for a total period of not less than five years one
or other of the qualifications specified in paragraphs (a), (b),
(c) and (d) of section 12 (1) of the Advocates Act as in force
on 12th December, 1963.
(4) Subject to subsection (6), the Attomey-General shall
vacate his office when he attains such age as may be prescribed
by Parliament.
(5) The Attorney-General may be removed from office
only for inability to exercise the functions of his office
(whether arising from infinnity of body or mind or any other
cause) or for misbehaviour, and shaIII not be removed except
in accordance with this section.
(6) The Attorney-General shall be removed from office
by the President if the question of his removal from office has
been referred to a tribunal appointed under subseotion (7) and
the tribunal has recommended to the President that he ought
to be removed for inability as aforesaid or for misbehaviour.
(7) If the President considers that the question of removing the Attorney-General under this section ought to be
investigaited, then-
(a) the President shalil appoint a tribunal which shall
consist of a chairman and four other members selected by the President from among persons-
(i) who hold or have held office as judge of the
High Court or judge of appeal; or
(ii) who are qualified to be appointed as judges of
the High Court under section 61(13); or
(iii) upon whom the rank of Senior Counsel has been
conferred by the President under section 17 of
the Advoctes Act; and
(b) the tribunal shall inquire into the matter and report
on the facts thereof to the President and recommend
to him whether the Attoney-General ought to be
removed under this section.
(8) If 'the question of removing the Attorney-General has
been referred to a tribunal under this section, the President
may suspend the Attorney-General from the exercise of the
functions of his office and any such suspension may at any
time be revoked by the President, and shall in any case cease
to have effect if the tribunal recommends to the President that
the Attorney-General should not be removed.
Controller and Auditor-General
110. (1) The Controller and Auditor-General shall be
appointed by the President.
(2) If the office of Controller and Auditor-General is
vacant or if the Controller and Auditor-General is for any
reason unable to exercise the functions of his office, the
President may appoint a person to act as Controller and
Auditor-General, and a person so appointed shall, subject to
subsedtions (3), (5) and (7) continue to act until a person has
been appointed to the office of Controller and Auditor-General
and has assumed the functions of that office or, as the case
may be, until the person in whose place he is acting has resumed those functions.
(3) Subject to subsection (5), the Controller and Auditor-General shall vacate his office when he attains such age
as
may be prescribed by Parliament.
(4) A person holding the office of Controller and Auditor-General may be removed from office only for inability to
discharge the functions of his office (whether arising from infirmity of body or mind or any other cause) or for
misbehavior,
and shall not be so removed except in accordance with this section.
(5) The Controller and Auditor-General shall be removed
from office by the President if the question of his removal
from office has been referred to a tribunal appointed under
subsection (6) and the tribunal has recommended to the President that he ought to be removed for inabitilty as
aforesaid
or for misbehaviour.
(6) If the President censiders that the question of removing the Controller and Auditor-General under this section
ought to be investigated, then--
(a) the President shall appoint a tribunal which shall
consist of a chairman and four other members selected by the President from among persons--
(i) who hold or have held office as judges of the
High Court or judges of appeal; or
(iii) who are qualified to be appointed as judges of
the High Court under section 61(3); or
(iii) upon whom the rank of Senior Counsel has been
conferred by the President under section 17 of
the Advocaites Act; and
(b) the tribunal shall inquire into the matter and report
on the facts thereof to the President and recommend
to him whether the Controller and Auditor-General
ought to be removed under this section.
(7) If the qustion of removing the Controller and Auditor-General has been referred to a tribunal under this
section, the
President may suspend the Controller and AuditorGeneral
from the exercise of the functions of his office and any such
suspension may at any time be revoked by the President, and
shall in any case cease to have effect if the tribunal recomends
to the President that the Controller and Auditor-General should not be removed.
Appointment of Permanent Secretaries, Ambassadors, etc.
111. (1) The power to appoint a person to hold or act in
the office of Permanent Secretary, Secretary to the Cabinet
or Director of Personnel shall vest in the President
(2) The power to appoint a person to hold or act in the
office of Ambassador, High Commissioner or other principal
representative of Kenya in another country, and to remove
from office a person holding or acting in any such office,
shall vest in the President:
Provided that before exercising a power conferred by
this subsection in relation to a person who holds an office
in the public service, other than an office to which this subsection applies, the President shall consult the Public
Service
Commmission.
Pension laws and protection of pensions
112. (1) The law to be applied with respect to pensions benefits that were granted to a person before 12th
December, 1963 shall be the law that was in force at the date
on which those benefits were granted or any law in force at a
later date that is not less favourable to that person.
(2) The law to be applied with respect to pensions
benefits (not being benefits to which subsection (1) applies)
shall--
(a) in so far as those benefits are wholly in respect of a
period of service as a public officer that commenced
before 12th December, 1963, be the law that was in
force on 11th December, 1963; and
(b) in so far as those benefits are wholly or partly in
respect of a period of service as a public officer that
commenced after 11th December, 1963, be the law
in force on the date on which that period of service
commenced,
or any law in force at a later date that is not less favourable
to that person.
(3) Where a person is entitled to exercise an option as to
which of two or more laws shall apply in this case, the law for
which he opts shall, for the purposes of this section, be deemed
to be more favourable to him than the other law or laws.
(4) All pensions benefits shall (except to the extent to
which, in the case of benefits under the Provident Fund Act,
the Widows' and Orphans' Pensions Act, the Asian Widows'
and Orphans' Pensions Act and the Asian Officers' Family
Pensions Act or under any law amending or replacing any of
those Acts, they are a charge on a fund established by any of
those Acts or by any such law and have been duly paid out
of that fund to the person or authority to whom payment is
due) be charged upon the Consolidated Fund.
(5) All sums that, under any of the Acts referred to in
subsection (4) or under any law amending or replacing any of
those Acts, are to be paid by the Government of Kenya into
a fund established by any of those Acts or by any such law
or are otherwise to be paid by the Government of Kenya for
the purposes of any of those Acts or any such law shall be
charged upon the Consolidated Fund.
(6) A person who is entitled to the payment of pensions benefits and who is ordinarily resident outside Kenya
may, within a reasonable time after he has received that payment, remit the whole of it (free from any deduction,
charge
or tax made or levied in respect of its remission) to any country
of his choice outside Kenya:
Provided that nothing in this subsection shall be construed as preventing-
(i) the attachment, by order of a court, of a payment
or part of a payment to which a person is entitled
in satisfaction of the judgment of a court or pending
the determination of civil proceedings to which he is
a party to the extent to which that attachment is
permitted by the law with respect to pensions benefits that applies in the case of that person; or
(ii) the imposition of reasonable restrictions as to the
manner in which a payment is to be remitted.
(7) In this section "pensions benefits" means any pensions, compensation, gratuities or other like allowances for
persons in respect of their service as public officers or for the
widows, children, dependants or personal representatives of
those persons in respect of that service.
(8) References in this section to the law with respect to
pensions benefits include (without prejudice to their generality)
references to the law regulating the circumstances in which
those benefits may be granted or in which the grant of those
benefits may be refused, the law regulating the circumstances
in which any such benefits that have been granted may be
withheld, reduced in amount or suspended and the law
regulating the amount of any such benefits.
(9) For the purposes of this section-
(a) an office in any naval, military or air foree established by or under any law made by a legislature
in Kenya;
(b) to the extent to which pensions benefits in respect of
service in such an office are payable under any of
the Acts referred to in subsection (4) or under any
law amending or replacing any of those Acts,
an office in the service of the East Africa High
Commission, the East African Common Services
Organization or the East African Community; and
(c) an office in the service of any of the following bodies
(which are bodies that are no longer in existence but
in respect of former service in which pensions arc
payable out of Kenya funds)-
(i) the Combined Posts and Telegraphs Department
of Kenya and Uganda;
(ii) the Amalgamated Posts and Telegraphs Department of Kenya, Uganda and Tanganyika;
(iii) the Customs Department (Kenya and Uganda);
(iv) the Kenya and Uganda Joint Imports Control Organization;
(v) the Joint Income Tax Department;
(vi) the Kenya Royal Naval Volunteer Reserve;
(vii) the Northern Brigade, King's African Rifles;
(viii) the Zanzibar Branch Audit Office;
(ix) the following departments of the Conference of
East African Governors-
(a) the Secretariat;
(b) the British East Africa Meteorological Ser-
vice;
(c) the Statistical Section;
(d) the East African Production and Supply
Council;
(e) the East African War Supplies Board;
(I) the East African Directorate of Civil
Aviation; and
(g) the Directorate of Training.
shall be regarded as an office in the public service.
Power to withold pensions
113. (1) Where under any law a person or authority
has a discretion-
(a) to decide whether or not any pensions benefits shall
be granted; or
(b) to withhold, reduce in amount or suspend any such
benefits that have been granted,
those benefits shall be granted and may not be withheld,
reduced in amount or suspended unless the Public Service
Commission concurs in the refusal to grant the benefits or, as
the case may be, in the decision to withhold them, reduce them
in amount or suspend them.
(2) Where the amount of any pensions benefits that may
be granted to a person is not fixed by law, the amount of
the benefits to be granted to him shall be the greatest amount
for which he is eligible unless the Public Service Commission
concurs in his being granted benefits of a smaller amount.
(3) The Public Service Coniinission shall not concur
under subsection (1) or subsection (2) in any action taken on
the ground that a person who holds or has held the office
of judge of the High Court, judge of any Court of Appeal
exercising jurisdiction in Kenya, Attorney-General or Controller and Auditor-General has been guilty of
misbehaviour
in that office unless he has been removed from that office by
reason of his misbehaviour.
(4) Before the Public Service Commission concurs under
subsection (1) or subsection (2) in any action taken on the
ground that a person who holds or has held any office to
which, at the time of the aotion, section 69 applies has been
guilty of misbehaviour in that office, the Public Service Commission shall consult the Judicial Service Commission.
(5) In this section "pensions benefits" means any pensions, compensation, gratuities or other similar allowances for
persons in respect of their service as public officers or for the
widows, children, dependants or personal representatives of
those persons in respect of that service.
(6) For the purposes of this section an office shall be
regarded as an office in the public service that is by virtue of
section 112 (9) regarded as an office in the public service for
the purposes of that section.
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Chapter 7 | Chapter 9
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