The Anchor

ANALYSIS

By Martin Masai

OPTIONS FOR DR. HARVEY MBITHI

The controversy surrounding Dr. Harvey Mbithi Mulei’s dual roles in Makueni County illuminates a persistent challenge in Kenya’s public service: balancing professional expertise with administrative responsibilities while adhering to statutory procedures.

Dr. Mbithi, a pharmacist by profession, has been serving as the Chief Officer (CO) for Human Resource Management and Administration in the Department of Health without formally resigning from his substantive role as a senior pharmacist.

This dual capacity has sparked a governance impasse, with the County Public Service Board (CPSB) insisting on his resignation, while Dr. Mbithi seeks a middle ground—leave of absence so that he returns to the office when the CO’s job is over.

Kenyan public service laws and regulations mandate clear separation between substantive roles and political or administrative appointments. The rationale is rooted in the principle of impartiality and the need to avoid conflicts of interest.

The law requires that permanent public servants resign when appointed to senior administrative or political roles.

Public servants transitioning to roles with executive powers are often required to sever ties with their substantive positions.

This ensures they execute their new duties without bias or undue influence from their former roles.

Dr. Mbithi’s lack of a formal appointment letter, though he has been nominated by Governor Mutula Kilonzo, approved by the CountyAssembly of Makueni, and eventually gazetted as CO by the Governor is testament that the process is incomplete.Any any actions he takes can be challenged in court.

Further, the law provides that one is  not qualified to seek  such appointments in public service if one is serving as a civil servant. So, what vetting was performed by the assembly if Dr. Mbithi was not flagged at that stage?

Thus, the Makueni CPSB’s refusal to issue an appointment letter reflects procedural gaps. The board is right.

To resolve the matter, the board insists that resignation from his medical role is a precondition to formalizing his CO status, ensuring compliance with public service regulations

Legal Implications of Dual Roles: For Dr. Mbithi to continue to draw a senior pharmacist’s salary while executing the duties of a chief officer contravenes public service ethics.

The CPSB has argued that allowing such an arrangement could set a precedent for others to hold multiple roles simultaneously, undermining accountability and governance.

Why Leave of Absence is Not Viable

Dr. Mbithi’s proposal for a leave of absence from his pharmacist role while serving as CO has been rejected by the CPSB. Here’s why:

Temporary arrangements for the chosen few- like in the present case lack finality. This is because a leave of absence implies the eventuality of reverting to one’s substantive role, creating uncertainty and potentially undermining the authority of the individual in the administrative role.

In the case of Dr. Mbithi, it may be suitable to borrow from Music Maestro Dolly Parton’s ideal that one can not be at two different places at the same time.

The public perception created by this impasse is that officials can hoard public positions as they massage their egos in a county with worrying and galloping unemployment.

It simultaneously throws accountability on the part of the governor, the assembly, and the CPSB under the bus.

Maintaining a fallback position could give the impression of intrigue, hedging bets, and eroding public confidence in the CO’s commitment to the role. He would serve as CO, with his eyes and mind in the roles of the senior pharmacist.

The Role of the Assembly and PSC

The County Assembly and the Public Service Commission (PSC) have become central players in resolving the dispute. While the assembly approved Dr. Mbithi’s nomination, its oversight mandate, can not override the procedural authority of the CPSB. Neither should Mutula’s action.

Similarly, the PSC’s decision will likely clarify whether professionals in public service can retain fallback roles or must resign outright.

It raises important questions about governance in the counties and may not be an isolated one.

Procedural Integrity vs. Political Expediency:

Should appointments prioritize expedience over adherence to procedure? Should Governors nominate, appoint, and Gazette officials notwithstanding the context within which the official is serving? Is there a shortage of qualified people in Makueni for an appointment to become COs? Must the people of the county be dragged through the mud to fill this post?

If the PSC upholds the CPSB’s stance, it will set a precedent for how counties manage transitions from professional to administrative roles.

When Resignation is Necessary

Dr. Mbithi’s resignation as a pharmacist would not only comply with legal requirements but also reinforce his legitimacy as a Chief Officer.

EBy resigning either role, Dr. Mbithi would exercise decisivenes and pave the way for future professionals transitioning to leadership roles without compromising public trust.

It would demonstrate a commitment to transparency, accountability, and the integrity of public service.

While his petition to the PSC may seek to challenge the CPSB’s decision, the ultimate resolution lies in upholding the rule of law.