Water Sector Trust Fund CEO Ismail Fahmy is now seeking a third term at the helm of the institution, despite legal terms confining him to only two terms.
The CEO was first appointed on November 9, 2014, for a three-year term, which expired on November 9, 2017. The CEO’s contract was renewed by the Board for another term of three years from November 10, 2017, and is due to expire on November 9, 2020.
According to the Mwongozo Code of Governance in which state corporates are subject, a CEO’s term is limited to two terms.
However, Mr Fahmy made a request for renewal of his contract for a third term of three years in disregard to the Code of Governance.
The Fund’s Human Resource Policies and Procedures Manual also limits the CEO’s tenure to two terms of three years.
“Clause 2.5.2 of the Human Resource Policies & Procedures Manual provides as follows: The Chief Executive Officer shall be appointed on the contract of three years renewable once subject to satisfactory performance,” said an advisory from the Solicitor general Kennedy Ogeto.
The Water Sector Trust Fund’s Board had sought legal opinion from the office of the Attorney General regarding the appointment of the CEO for a third term.
“We have considered the information and documents provided by the Fund in light of the Mwongozo Code of Governance, the Fund’s Human Resource Policies & Procedures Manual and the referenced Circular issued by the Head of the Public Service and are of the considered opinion that since the CEO has served for two (2) terms of three (3) years each, he is ineligible for re-appointment for a third term of three (3) years,” Mr Ogeto wrote in his legal advisory to the fund.
It is feared that the legal advice could be disregarded by the Board and Mr Fahmy gifted a third term at the institution mandated to provide conditional and unconditional grants to the Counties and to assist in financing the development of and management of water and sanitation services in the marginalised and underserved areas.
If disregarded, this will not be the first time ministries and even the President are disregarding such advisories.
Water Services Regulatory Board CEO Eng. Robert N. Gakubia has gone for more than four terms in disregard of the guidelines.
Northern Water Works Development Agency CEO Abdikadir N. Osman is on the third term. He joined the Board as Finance & Administration Manager before his appointment as the Chief executive officer in 2013.
At the National level, former Kenya Revenue Authority Commissioner-General John Njiraini was given a third term but removed through a court petition. He was later appointed by the President as the chairman of the Board of the Geothermal Development Company.
In February 2016, Head of Public Service Joseph Kinyua issued a directive stopping appointing full-time state officers to boards of state corporations.
“In view of the foregoing and in order to comply with the requirement of the rule of law under Article 10(2) (a) of the Constitution, it has been decided that there shall be no more appointments of state officers to Boards of State Corporations on their individual capacities except where the legal instruments establishing a state corporation provides otherwise,” read the circular.
In November 2019, President Uhuru Kenyatta appointed Uasin Gishu Senator Margaret Kamar to the board of the National Fund for Disabled of Kenya, against the directive. The board is chaired by President Kenyatta’s sister Kristina Pratt.
During the same period, Treasury CS Ukur Yatani’s wife, Gumato, was appointed to the task force on Standards and Quality Infrastructure Reforms in Kenya, as well as chairperson of the Jomo Kenyatta University of Agriculture and Technology.
The Kenya Veterinary Board has four members, all full-time public officers. Among them is Prof Maingi Ndichu, the Dean Faculty of Vet Medicine in the University of Nairobi.
As of 2016 when the circular was issued, it was estimated that there were over 80 parastatal board members in the country who were still public servants.