Bernice Mbugua @BerniceMuhindi
The Employment and Labour Relations Court has issued an order restraining Transport, Housing and Urban Development Cabinet Secretary James Macharia from establishing an advisory board that will oversee implementation of the 500,000 affordable homes project.
Justice Jorum Abuodha issued the temporary order following a suit by Federation of Kenya Employers challenging the gazette notification issued by Macharia on December 24.
The Gazette notice invited Central Organisation of Trade Unions (Cotu), Kenya National Union of Teachers (Knut), Federation of Kenya Employers (FKE), Union of Kenya Civil Servants, Kenya Bankers Association (KBA) and Kenya Private Sector Alliance (Kepsa) to nominate six representatives to the Housing Fund advisory board.
However, in their suit, FKE claims that the Gazette notice by the CS is unlawful, irregular and has no basis in law as there was no public participation in the formulation of an advisory board.
FKE has named CS Transport, National Housing Corporation (NHC) and the Attorney General as respondents in the suit. Cotu has been listed as an interested party.
“The said call for nomination of advisory board members contravenes Section 6 of the Housing Act as it provides that the Housing Fund is under the control of the National Housing Corporation,” said FKE executive director Jacqueline Mugo in court documents.
FKE further argued that the CS has not provided any legal framework or regulations that govern the role of the advisory board, the composition of the board, the selection process of the candidates, the duties and nature of appointment and the nature of engagement and terms of service.
“The CS’s actions are in bad faith and amount to ambush and sabotage the interests of Kenyan citizens particularly employers and employees who are the main contributors of the fund which prejudices and jeopardises their interests,” she further added in court documents.
FKE further contend that the notice issued by the CS does not give the listed institutions the opportunity and reasonable time to advertise and invite its members for applications, select notable candidates for the proposed nominees in an open and transparent process.
“The timelines provided by the CS are impractical as the invitation was advertised and published on December 24 last year when most organisations’ offices are closed for the Christmas break,” stated FKE in court documents.
According to the employer body, it is only fair and just that the constitutionality of the Housing Fund is determined and the constitutionality of establishing an advisory board be determined by the court before the establishment of the advisory board.
“The Housing Act does not confer powers to the corporation to establish an advisory board on the contrary to Section 22 (2) of the Housing Act provides other additional duties of the corporation which include to advise the CS and assist in the preparation of proposals for dwellings and schemes,” stated FKE.