CHAPTER VIII

THE PUBLIC SERVICE

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 become vacant -

(a) at the 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, would make him ineligible for appointment to the office of member of the Commission.

(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 misbehaviour, 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 subsection (8) and the tribunal has recommended to the President that he ought 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 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 (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 removed.

(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, as the case may be, the deputy chairman or, if the office of deputy chairman 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 subsection (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.