In a significant victory for Teachers Service Commission (TSC) CEO Nancy Macharia, the High Court has dismissed a petition seeking her removal over corruption allegations. Justice Lawrence Mugambi delivered the judgment, ruling that the petition filed by activist Francis Owino was premature.
Owino had accused Macharia of violating Chapter Six of the Constitution due to gross misappropriation and misuse of public funds exceeding Sh3 billion for salaries. However, in striking out the petition, the judge emphasized the lack of sufficient evidence to substantiate the claims against Macharia, stating that there was not enough basis for the court to determine her unfitness for public office.
“In my firm view, there is absolutely no iota of probative evidence to sustain the allegations against TSC chief executive for the court to make a declaration for her removal,” Justice Mugambi said.
The allegations in the petition detailed several issues purportedly plaguing TSC under Macharia’s leadership.
Owino stated in his petition that the Auditor General had implicated the TSC in a Sh3 billion salary scandal, where the chief executive allegedly overpaid a section of the staff despite the agency facing a shortage of teachers.
The petitioner also accused the commission of failing to remit over Sh2 billion in taxes deducted from staff salaries and noted that some employees who had not repaid their salary advances continued to draw more advances, raising questions about possible collusion to misuse the commission’s funds.
Furthermore, Awino pointed out that the Auditor General’s report indicated that a review of the payroll for the 2020/2021 financial year revealed that 32 teachers had an outstanding balance of salary overpayment amounting to Sh33,780,614.
The repayment period for these amounts extends beyond the retirement age of the respective teachers, casting doubt on the recoverability of the balance.
The Auditor General’s report indicated that some teachers had substantial outstanding balances from overpayments, casting doubt on the recoverability of these funds. One particular case involved a teacher overpaid by Sh4.8 million, with a repayment scheme that would take an impractical 44 years to recover.
The petition alleged that Macharia’s actions had led to gross misconduct and corruption within TSC, seeking declarations that she had violated constitutional provisions and should be held accountable.
The petitioner called for a mandamus order compelling the EACC to investigate Macharia and, if warranted, for the Director of Public Prosecutions (DPP) to initiate criminal proceedings against her.
But in his decision, the judge noted that any inquiries regarding violations of leadership should have been raised with the Ethics and Anti-Corruption Commission (EACC) before approaching the court.
The court reiterated that the responsibility to enforce Chapter Six of the Constitution primarily lies with the EACC.
Judge Mugambi also noted that the claims made by Owino were based on an auditor’s report and lacked subsequent investigations to corroborate the findings. “The Auditor’s report, however, has not been subjected to any further investigations to corroborate the assumptions made. Aside from the general conclusions, there are no authenticated annexures or witness testimonies to support the claims. In the eyes of the court, these are hearsay statements and do not prove the case against Macharia,” Mugambi said.
“For a proper assessment, an investigation should have commenced to gather evidence supporting the allegations,” the judge held.
