A document that caused much acrimony in Parliament early this month, over whether IEBC employee Tabitha Mutemi was validly appointed to the board of the Media Council of Kenya (MCK), has been found.
It has emerged that the Office of the Attorney-General issued two conflicting advisories over who qualifies to be appointed to the board of a State corporation.
The ICT ministry declared Ms Mutemi, who is the Corporate Affairs and Events Manager at the Independent Electoral and Boundaries Commission (IEBC), unsuitable to be a member of the MCK board.
The decision by the ministry, which was communicated to MCK CEO David Omwoyo for implementation, was, interestingly, based on an August 2020 advisory opinion signed by Solicitor-General Ken Ogeto.
The Solicitor-General, according to the Office of the Attorney-General Act, is the principal assistant to the Attorney-General.
But it has now emerged that the May 9, 2019 advisory of Attorney-General Kihara Kariuki that is in the Nation’ s possession clears any illegality or irregularity regarding Ms Mutemi’s appointment to the board.
“The State Corporations Act does not prohibit the appointment of public officers serving at any level of government as members of boards of a State corporation,” Mr Kariuki says in the advisory to ICT Cabinet Secretary Joe Mucheru.
But Mr Ogeto appears to overrule his boss when he says that Ms Mutemi is a public officer and can therefore not serve in another public office.
Appearing before the committee on March 3, 2021, Mr Ogeto said that by working for the IEBC and being a member of the MCK board, Ms Mutemi was holding two public positions.
“We have issued only one opinion dated August 2020,” Mr Ogeto told the committee.
“If there is any other opinion, it relates to a different matter. The office of the AG is not aware of any other opinion on this matter.”
The AG’s advisory opinion is what the selection panel used to recruit Ms Mutemi and six other MCK board members in May 2019.
The panel chaired by Kenya Union of Journalists (KUJ) Secretary-General Erick Oduor was, however, denied the document at the time it was required by the Communication committee.
“Initially, we had disqualified some public servants from applying to be members of MCK board,” Mr Oduor says.
He notes that those blocked complained to CS Mucheru who in turn “wrote to us on the basis of this advisory - that we include all including public servants”.
"That is how we re-advertised the positions," Mr Oduor says.
This comes as it emerges that the committee has already recommended the setting up of a tribunal to investigate Ms Mutemi’s case.
The Committee meeting on Friday took about one and half hours to recommend the tribunal, with nominated MP Godfrey Osotsi dissenting.
This is despite the House approving a request by the committee to be granted two weeks to investigate the matter.
“I have dissented and I am writing my own minority opinion. They are punishing Ms Mutemi because she raised issues of governance and misuse of public funds at the MCK,” Mr Osotsi told the Nation .
“The committee had requested for two weeks but surprisingly, it took one and half hours to recommend a tribunal,” he said.
“Why spend millions of taxpayers’ money when the issue can be addressed amicably? Ms Mutemi is only left with slightly more than a year before her term expires.”
The nominated MP further noted that an amicable solution, as proposed by Kenya Editors Guild (KEG) President Churchill Otieno, was the best way forward.
Ms Mutemi was appointed to the MCK board through a Gazette notice on October 31, 2019 for a three-year term that expires on October 2, 2022.
The definition of a State corporation as advanced by the Attorney-General complicates the MCK case against her as it excludes MCK from the list of State corporations.
“The State Corporations Act is a statute of general application for the control and management of state corporations,” Mr Kihara says in the advisory.
Further, section 6 of the State Corporations Act sets out the guidelines for the appointment of members to boards of State Corporations.
The State corporation board, as per the law, shall include a chairman appointed by the President and who shall be non-executive unless the President otherwise directs, the chief executive, Principal Secretary of the parent ministry and the Principal Secretary to the Treasury.
The others are the Attorney-General or his representative and not more than 11 other members, not being employees of the State corporation. Not more than three of them shall be public officers appointed by the minister.
“Every appointment under the Act shall be by name and by notice in the Gazette and shall be for a renewable period of five years or for such shorter period as may be specified in the notice,” the AG says.
The definition as advanced by the Attorney-General effectively rules out MCK from the category of a State corporation.
The MCK Act provides that the board shall include the chairman and six other members appointed by the Cabinet Secretary in charge.
It is not clear why the two advisories were issued, especially considering that the Ogeto advisory does not revoke the May 9, 2019 advisory.
Mr Kihara further goes on to explain that the appointment of the board members of State corporations is guided by the Constitution and State Corporations Act, as well as the instruments establishing the State corporation.
The others are the Act of Parliament or a legal notice in the Gazette, memorandum and articles of association for companies and the Mwongozo - the Code of Governance for State corporations.
