A boardroom war has erupted at the Media Council of Kenya (MCK) after chief executive David Omwoyo dismissed a member on claims that her appointment was irregular.
The action has triggered a flurry of exchanges between the CEO and MCK Board chairman Maina Muiruri, the Attorney-General’s office, the Ministry of ICT and a law firm.
One of the letters by Mr Omwoyo in our possession dated January 11, 2021, is addressed to Mr Muiruri.
Mr Omwoyo argues in the letter that Ms Tabitha Mutemi cannot be a member of the board on account that she is a public officer, a move that has been contested by a section of the board members.
Ms Mutemi is currently in charge of Corporate Affairs and Events Manager with the Independent Electoral and Boundaries Commission (IEBC).
“The secretariat will no longer recognize Ms Tabitha Mutemi as a board member of the Media Council of Kenya with immediate effect,” the letter copied to Ms Mutemi and ICT Cabinet Secretary Joe Mucheru, reads in part.
However, a section of the board members are specifically appalled how a CEO can “purport” to fire a board member, who is an appointee of a Cabinet Secretary through a gazette notice.
“It is just annoying the length with which the CEO can claim to fire a board member yet it is him who is an employee of the board. So who should sack the other?” a member of the board who did not want to go on record, wondered.
“We haven’t seen any other gazette notice revoking the appointment of Ms Mutemi. How can he then say that she is no longer a member of the board?” posed another member.
But in a swift response to Mr Omwoyo’s actions, Kilonzo and Company Advocates, which represents Ms Mutemi dismissed as illegal her “purported” removal from the board claiming that their client is being targeted for questioning suspicious expenditures at the MCK.
“Under section 14 of the MCK Act, you have no jurisdiction to remove or purport not to recognize a member appointed by the Cabinet Secretary under gazette notice,” Kilonzo and Company Advocates says.
“The CS as the appointing authority is the only person who can cause the removal from office,” Mutemi’s lawyers add.
Section 14 of the MCK Act provides that a person desiring the removal of the chairperson or a member of the council on any grounds specified, may present a petition in writing to the National Assembly setting out the facts constituting the grounds.
The National Assembly shall then within seven days consider the complaints and if satisfied that it discloses a ground, submit the complaint together with the recommendations to the Cabinet Secretary in charge.
On receiving the recommendations, the CS shall suspend the member pending determination of the petition by a tribunal appointed by him.
The tribunal shall comprise a chairperson qualified to hold office as a judge of the High Court and two other members.
The tribunal shall consider the petition and if satisfied that it discloses sufficient grounds for removal recommend to the CS to remove the member.
In determining the petition, the petition is required to be guided by the principles of fair administration.
Mr Omwoyo’s is basing his decision on the 2016 circular by head of civil service Joseph Kinyua and the August 18, 2020 advisory opinion from Attorney-General Paul Kihara to the ICT Principal Secretary Mr Jerome Ochieng, who at the time was in charge of the MCK.
The advisory opinion prohibits members of the IEBC and its employees from holding another public office.
“Being the accounting officer of the Media Council of Kenya and in essence a public officer, I am bound by the advisory of the Attorney-General,” he says.
What is interesting is that the AG’s advisory opinion signed by Solicitor-General Ken Ogeto did not recall an earlier one that allowed the selection panel that recruited the current MCK board members to also include independent members from among the public service.
The selection panel was chaired by Kenya Union of Journalists Secretary-General Eric Oduor to recruit MCK independent board members from among the public service.
Yesterday, Mr Oduor maintained that Ms Mutemi’s appointment was above board.
“The reason why we were forced to re-advertise for the MCK board member positions is that we had locked out public officers from being shortlisted for the positions but ICT CS through an advisory of the Attorney-General intervened and told us to include everyone as per the law,” Mr Oduor said.
Mr Mucheru’s May 7, 2019 letter to Mr Oduor directing the selection panel to consider all who qualify as per the law, was based on the AG’s advisory opinion.
“The ministry is notified that during the panel’s shortlisting exercise, a number of candidates were disqualified by dint of being in employment with the government,” Mucheru’s letter read.
It continued; “I direct that the panel incorporates fairness in the selection process by applying uniform selection criteria to all applicants and ultimately furnish my office with the names of suitable candidates for appointment.”
Yesterday Mr Omwoyo confirmed to Nation that Ms Mutemi is no longer with the MCK board. “I confirm that Ms Tabitha ceased to be a member of the MCK board,” said Mr Omwoyo.
Broadcasting Principal Secretary Esther Koimett, under whose docket MCK is currently domiciled, had on September 16, 2020, reminded Ms Mutemi that she had two weeks to confirm whether she would prefer to continue serving as a council member of the MCK or as an IEBC employee.
The PS noted that Ms Mutemi’s response was necessary to enable CS Mucheru take necessary action “to ensure compliance with the law.”
“In the circumstances, it is clear that you cannot hold the position of an independent council member of MCK while still in gainful employment under IEBC,” Ms Koimett said.
In her September 28, 2020, reply to the PS, Ms Mutemi argues that her holding of the position of an Independent Council Member of the MCK on a part-time basis while still in employment with IEBC is within the law.
“Throughout the process, in submitting my applications and during the interviews before the MCK selection panel, I made full disclosure that I was an employee of IEBC,” Ms Mutemi says.
The MCK Act provides that a person shall not be qualified for appointment as chairperson or a member of the council if the person is an MP or MCA, is an official of a governing body of a political party and has at any time within the preceding five years, held a political office.
A person shall also not be a chairman or a member of MCK if the individual has been convicted of felony, has benefitted from, or facilitated an unlawful or irregular allocation, acquisition or use of land or other public property or has been removed from office for contravening the provisions of the constitution or any other written law.
“I wish to state that I did not fall in any of the above-mentioned disqualification categories,” says Ms Mutemi in response to Ms Koimett.
