By Andrew Kariuki
The High Court has issued a landmark judgment faulting the State Corporations Advisory Committee (SCAC) for acting without lawful authority in a dispute filed by activist John Githongo and another petitioner.
The consolidated petitions challenged SCAC’s role in transferring mandates and altering structures of several State Corporations, arguing that the committee had usurped the powers of the Public Service Commission (PSC) and violated constitutional requirements for public participation.
According to the judgment, the Court found that SCAC had no statutory or constitutional mandate to create, collapse or restructure public bodies, a function that rests squarely with Parliament and relevant ministries under the State Corporations Act.
The PSC’s role in establishing and reviewing public offices was also found to have been overlooked in the contested decisions.
The Court further noted that the impugned circulars and directives were issued without any demonstrable public participation, rendering them unconstitutional.
It also held that SCAC could not issue directions that effectively suspended or varied existing legal instruments governing State Corporations.
While analysing the claims, the bench underscored that any restructuring of State Corporations must follow the law, involve public consultation, and respect the statutory mandates of bodies such as PSC.
The Court affirmed that SCAC’s advisory role does not include decision-making powers capable of altering government agencies or transferring their functions.
In its final orders, the Court declared SCAC’s actions unlawful and invalid, emphasising that State Corporations cannot be reorganised through administrative circulars.
It also reaffirmed that only legally empowered bodies may create, abolish, or restructure public offices.
The judgment provides clarity on the limits of SCAC’s authority and reinforces constitutional safeguards around management of public institutions.
