Top officials of the Kenya National Examination Council (Knec) were members of a cheating syndicate neutralised in 2016, according to a report by the National Intelligence Service (NIS).
The cartel was defused after the intelligence service filed a situational report on exam leakage to the Education Cabinet Secretary.
A confidential report prepared by NIS says Knec top officials were involved in extortion, bribery and examination leakage.
Following the report, the then Education Cabinet Secretary Fred Matiang’i dissolved the Knec board on March 24, 2016 in an effort to contain the deteriorating situation in the administration of the Kenya Certificate of Primary Education (KCPE) and the Kenya Certificate of Secondary Education (KCSE) tests.
A new Knec board was appointed and it quickly moved to restore public confidence in the national examinations by doing away with anyone whose conduct, commission or omission could have led to the unfortunate state of affairs.
After the NIS report was released, Knec held a meeting on March 29, 2016.
The meeting resolved to suspend some senior Knec employees to allow for further investigations and disciplinary procedures if need be.
The details of the report emerged from a court case between Knec and a former council member Thomas Mackenzie who was dismissed over examination irregularities.
Mr Mackenzie was the principal examination administrator and head of a section that was involved with supervision and invigilation.
He was dismissed on April 25, 2016.
Mr Mackenzie was one of the key Knec officials charged with the execution of the examinations.
In defending its decision to terminate Mr Mackenzie, Knec said the NIS report showed he belonged to a syndicate comprising senior managers involved in examination leakage, extortion and bribe taking.
Knec said the report could not be released to the court since it would compromise the working of NIS and the manner with which Knec ensures the national examinations are credible.
Given the secretive manner with which examinations are set and handled, leakage of such papers would in the absence of any evidence to the contrary be blamed on those involved in examination setting and handling, the council told the court.
Labour and Industrial Relations Court judge Nzioki wa Makau was told that Mr Mackenzie was responsible for the recruitment of supervisors and invigilators.
“Because the people recruited by Mr Mackenzie were blamed for the leakages and malpractices during the examinations, the buck stops with him,” Knec lawyer told the court.
“To that end, Kenyans expected Knec as their trustee and agent to invoke the application of the rule allowing for the retirement of Mr Mackenzie in public interest.”
In urging court to dismiss Mr Mackenzie’s suit, the council called for consideration of the rights of children “who were made to sit leaked examinations and obtain fraudulent grades”.
The exam council added that it ended up ruining the children’s future.
“Retirement in public interest is not a punishment but an administrative action taken by the government for the sake of public order, safety and harmony. In this case, there was a reason for the public to be aggrieved. The retirement of Mr Mackenzie was justified,” the council told the court sitting in Nyeri.
Knec added that deterioration in its performance as the agency entrusted by the public to administer national examinations had reached a level that the government had to take action.
This was by overhauling the entire management team compromising the board and in-line managers.
The commissions or omissions by the claimant and his managerial team rendered them unsuitable for retention in employment as the public trust in his office had been eroded,” Knec said.
The Labour Court also heard that Mr Mackenzie never refuted the fact that the examination papers were leaked and that all he said was that he was not involved in the malpractices.
In retiring Mr Mackenzie, the council said it fully abided by the Constitutional safeguards in his favour.
However, the court said one cannot be dismissed from his or her job on grounds of public interest.
The court said there is no provision in the Employment Act of this (retiring in the public interest) mode of termination of a contract of service.
The judge said retirement in public interest is a form of termination of employment that is instigated by the employer and would aptly fit the description of involuntary termination.
In its judgment, the court found that the claimant was placed on a course for a disciplinary action but before he was heard, a decision to retire him had been undertaken.
“He had been asked to give reasons he did not write back denying the allegations levelled against him or offer some explanation,” Justice Makau said.
“The decision the respondent took to retire the claimant… should comply with the Employment Act.”
On the NIS confidential report that reportedly pointed the finger at Mr Mackenzie, the court said no evidence was adduced demonstrating his involvement as one of those responsible for examination leakages.
The judge said the council had the onus to show objective and demonstrable grounds warranting the retirement of Mr Mackenzie in the public interest.
“The claimant has proved that the respondent violated one of the cardinal rules of natural justice by not giving him a fair hearing before retiring him,” the judge said.
“He is therefore entitled to recover for this unlawful and unfair dismissal.”
The court awarded Mr Mackenzie Sh1.5 million as compensation for six months while declaring that his dismissal was unlawful and unfair.
Mr Mackenzie accused the council of acting with impunity in retiring him purpotedly in the interest of the public.
He said the action was contrary to the Knec human resources policies, procedures and terms and conditions of service manual, the Constitution of Kenya, the 2007 Employment Act and the provisions of the 2015 Fair Administrative Actions Act.
Mr Mackenzie added that the letter retiring him was sent to his postal address.
Mr Mackenzie was placed on paid leave, pending the conclusion of investigations into the examination malpractices and disciplinary process.
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