Activist Okiya Omtata has moved to court seeking to disband the entire board of the Agricultural Development Corporation (ADC) appointed in June 2018.
Omtata is also challenging the appointment of Mohammed Bulle as the acting managing Director of ADC, stating that he was appointed to the office by the Board contrary to government policy on secondment and is also above retirement age.
In a certificate of urgency, the petitioner argues that the board members were handpicked instead of being subjected to a transparent process in a competitive manner.
The members are the chairperson Benjamin Cheboi and board members Jean Njiru, Dr Gladys Kasia Ngao, Eng John Owuor Onyango, Hassan Osman, Tabitha Mbungu, Martin Ogindo, Paul Kibet Chebor, Roba Sharu Duba, and Peter Chemuigut.
The activist states that the President and agriculture CS appointed failed politicians who lost elections but supported the ruling party, violated the express prohibition against the conflicts of interest under Articles 73 and 75 of the Constitution appointments and also violate sections 36 and 37 of the Public Service Commission Act, 2017 on the filling of vacancies in the public service.
“The application is extremely urgent because the impugned manner in which the Chairperson and the independent members of the Board were handpicked and appointed to office is solely responsible for the insurmountable conflicts of interest which are impeding the proper functioning of the Board,” said Omtata.
According to the petitioner, since the Chairperson and board members were appointed through a process that blatantly violates express provisions of the Constitution and legislation, including the rule of law, transparency, public participation, the responsibilities of leadership and the use of executive power, they should not be allowed to continue holding public office.
“The Cabinet Secretary acted ultra vires and in vain when, contrary to sections 5(1)(b) & (e) of the ADC Act, failed to stagger the appointments of the ten board members by providing for different retirement dates for the members of the Board,” the petitioner submitted.
He further alleges that according to a special report on ADC released on September 2019 by the Inspectorate of State Corporations, Bulle abetted the board’s irregular expenditure of Sh 5 million.
Omtata further argued that the failure to abide by the law when making the public appointments was against the public interest, and it voided the appointments for being contrary to the requirements of the Constitution, including non-discrimination, inclusivity, the rule of law, public participation, good governance, and transparency (openness) and accountability, the provision to the public of timely, accurate information (Articles 10(2), 35(3), the Constitution).
He claimed that the ADC Board operates an outdated Board charter that is not aligned with its current strategic plan and is inconsistent with the provisions of Mwongozo (Code of Governance for State Corporations, 2015) and Board Committees operated without specific charters or terms of reference which led to lack of clarity of roles or duplication.
The petitioner further accuses the Board of un-procedurally appointing the Mohammed Bulle, the Acting MD, and Bulle allowed the Board to contravene the law by irregularly spending the shilling 5 million referred to above without requisite approval from the parent ministry.
“Having attained the mandatory retirement age from the public service of 60 years, and having served beyond the time allowed in acting capacity, Mohammed Burre is unqualified to hold the office of the Acting MD of the ADC”, he added.
According to him, the Board and its committee disregarded the Board Almanac and held numerous meetings during the 2018/2019 financial year, resulting into an overrun of shilling 14,359,073 (approximately an overrun of 59.1% of its shilling 24,288,368 budgetary provision).
This was inspite of cautionary advice by senior ADC management and Government representatives on the Board and of shilling 14,359,073, the parent ministry approved shilling 9 million for Board expenses, increasing the budgetary allocation for the FY 2018/2019 to shilling 33,288,368. However, the Board still exceeded the enhanced budget by Sh 5 million without approval contrary to the law.
In the application, it is alleged that he major components of the Board expenses for the FY 2018/2019 were accommodation (night outs) and mileage which amounted to shilling 23,493,851 (i.e., 60%). Whereas the letters of appointment of Board members indicated that their physical addresses were in Nairobi, the mileage and accommodation expenses were fraudulently computed based on their respective come counties.
He argued that the decisions made at six special Board meetings lacked quorum and the special Board meetings were more than planned regular meetings, which negated the purpose of the approved Board Almanac.
For instance, for the FY 2018/2019, the Board Audit and Risk Committee held 24 special meetings not planned for. Ten of the meetings had one agenda. The Committee had an approved budget of shilling 1,160,000 but it exceeded it by shilling 6,243,265, representing a 538.21% budget overrun.
“Whereas the Board Almanac provided for four regular meetings, the Board held a total of twenty-four meetings, representing an excess of 500% in the FY 2018/2019 and the Board was conflicted in the manner it removed staff who had tried and failed to stop the Board overrunning its shilling 24,288,368 budgetary provision,” said Omtata.