A parliamentary committee has recommended the removal of Tabitha Mutemi as a board member of the Media Council of Kenya (MCK).
The National Assembly’s ICT Committee, in a report it tabled in the House last Tuesday, put Ms Mutemi’s fate in the hands of ICT Cabinet Secretary Joe Mucheru — the same man who had initially cleared the way for her hiring.
In his May 2019 letter, Mr Mucheru, who had sought the advice of the Attorney-General on state officers who had applied for the job, directed the selection panel headed by Kenya Union of Journalists Secretary-General Erick Oduor to interview all applicants— including Ms Mutemi.
But Ms Mutemi’s goose now appears cooked after Mr Mucheru, in his submissions to the committee, made an about-turn, saying, her appointment to the media regulator’s board was illegal since she was still an employee of the Independent Electoral and Boundaries Commission (IEBC).
This came as IEBC said it would take administrative action against the embattled MCK board member for taking up a job at the council in contravention of the commission’s code of ethics.
Ms Mutemi has been embroiled in a tussle to keep her job at MCK, in what the Attorney-General’s Office now also says is an illegality because she is a State officer.
In January, MCK CEO David Omwoyo wrote to the board Chairman Maina Muiruri notifying him that the secretariat would not recognise Ms Mutemi as a board member due to the alleged illegality in her double employment.
On March 11, Muriuki Muriungi, an advocate acting on behalf of KMK Africa Law Advocates, wrote a petition to Parliament, seeking the removal of Ms Mutemi as a member of MCK board, arguing that she was holding two State positions, which was against the law.
In her defence before the National Assembly’s ICT committee chaired by Marakwet West MP William Kisang, Ms Mutemi argued that she disclosed her employment status to the MCK while applying for a board position and received no objection.
“Ms Mutemi pointed out to the interviewing panel, a precedent set by a member of IEBC Selestine Kiuluku, who was also appointed as a member of the Salaries and Remuneration Commission (SRC) in December 2019. The defendant noted that there was no objection raised to Ms Kiuluku holding the two positions,” the committee report reads in part.
She also argued that her role at the MCK board is part-time given that the membership to the council is not a full-time engagement, with four meetings annually.
“She averred that the role of the council, as envisaged in the Act, is that of oversight and not day-to-day management,” the report said.
However, the parliamentary committee found that the petition discloses sufficient grounds for her removal from office based on “ineligibility of her appointment as an MCK Council member by virtue of her current employment in IEBC, in breach of written laws, Constitution, and governed policy in her appointment.”
It also found her guilty of gross misconduct for failure to adhere to lawful directions by her superiors, and appointing authority.
“The committee therefore recommends that the complaint be submitted to the CS Information Communication and Technology for appropriate action in accordance with the provisions of section 14 (3) and (4) of the Media Council Act, No. 46 of 2013,” it said in its final report.
During the committee’s sittings, the ICT Ministry, Kenya Editors Guild, Kenya Union of Journalists, MCK, Kenya Correspondent Association and Ms Mutemi gave their submissions. The MPs held two sittings to analyse submissions and prepare their report.
The Kenya Editors Guild (KEG) President Churchill Otieno in his submission to the committee questioned the removal, saying the MCK Act provides the qualifications of who is to serve as chairman and member to the MCK board. “Ms Mutemi was duly appointed by CS Joe Mucheru after a selection process that was not challenged, including her suitability,” Mr Otieno said.
KEG said the grounds for the removal of the embattled board member lay emphasis on matters outside the Media Council Act 2013— matters which have more alignment to the IEBC Act.
“In order to protect the independence of the Media Council, the law expressly lists persons who may not serve at the Council under Section 8(2), whose clear meaning is that those not so listed have a right to serve should they so wish, and if they are found suitable by a selection panel set up for that purpose,” KEG said in its submissions.
The Guild also argued that the current Media Council Board was duly appointed by CS Mucheru in October 2019 via Gazette notice 9506. “This was after a selection process that was not challenged, including the suitability of Ms Mutemi,” KEG said.
But the Head of Public Service Joseph Kinyua, through a March 23 letter to Michael Sialia, the Clerk of the National Assembly, noted that Ms Mutemi’s appointment as an independent member of the MCK board was untenable mostly because her employer, IEBC, had no direct relations with MCK.
“Ms Mutemi is indicated as being an employee of IEBC, and as such is in the service of the government. IEBC is not specifically listed as a member of the MCK board, and Ms Mutemi is not designated as a representative thereof,” Mr Kinyua said, adding that by virtue of Mwongozo Code of Governance, she would be ineligible to serve within the MCK board.
“Consequently, the respective CS would be expected to take the necessary action to regularise the same and secure an appropriate appointment in line with section 7 (2) of the Media Council Act,” Mr Kinyua wrote.
IEBC, through Obadiah Keitany, also wrote to the committee on March 22, clarifying that Ms Mutemi was indeed still an employee at the commission, serving as its corporate communication affairs manager.
“The commission acknowledges Ms Tabitha Mutemi as an employee of IEBC,” Mr Keitany said in the letter, adding that the agency was neither consulted nor notified of her appointment to the MCK board.
IEBC argued that section 2 (1) (b) of the Fourth Schedule prohibits members and staff of the electoral agency from holding other public officers while still in employment of the polls agency.
“Consequently, Ms Mutemi’s appointment as a board member of MCK is not viable while still in employment of IEBC,” he said.
Mr Mucheru also wrote to the National Assembly Clerk, saying Ms Mutemi’s continued stay at MCK was a violation of the law.
CS Mucheru said he was not made aware of Ms Mutemis’ employment at the IEBC before he appointed her to the media regulator’s board.
“Once seized of this matter, the ministry requested and received an advisory opinion from the Attorney-General on August 16, 2020 confirming that her appointment to the Media Council board was not supported by law,” Mr Mucheru said.
The CS added that Ms Mutemi should be removed from the MCK board if she continues to remain an employee of IEBC. Solicitor-General Kennedy Ogeto also supported her removal.
Appearing before the committee on March 3, Mr Ogeto said by working for the IEBC and being a member of the MCK board, Ms Mutemi was holding two public positions.
This was also the same view the Attorney-General shared with the Committee, sealing Ms Mutemi’s fate.
But Mr Oduor, whose panel hired Ms Mutemi, noted that her removal was based on the erroneous assumption that MCK is a State corporation established and controlled by the executive. “MCK is a statutory body, whose establishment, composition and functions are based exclusively on the MCK Act and Article 34 (5) of the constitution,” Mr Oduor notes.
For now, Ms Mutemi’s fate rests with the House, which will either adopt or reject the recommendations of Mr Kisang’s committee.
