Kenya: MCK Wrangles Bad for Media Independence, Editors Guild Says

The Kenya Editors Guild (KEG) now wants the ongoing boardroom wars at the Media Council of Kenya (MCK) addressed immediately, saying they are a danger to the independence of the media.

KEG President Churchill Otieno, in a statement to newsrooms, says the infighting at the media co-regulator after its CEO David Omwoyo authored a letter withdrawing recognition of Ms Tabitha Mutemi as council board member is "particularly disturbing."

To address the issue, the KEG boss wants Mr Omwoyo to immediately rescind the letter purportedly removing Ms Mutemi from the council board as it is illegal.

"All these developments are deeply disturbing as they ignore due process and, in particular, the laid down mechanism for appointment and removal of MCK council members," Mr Otieno said.

"This mechanism, by itself, underpins the independence of the MCK and, by extension, the independence of the media," he added.

He noted that KEG's intervention in the matter is about upholding and securing the independence and integrity of the media co-regulatory framework established and guaranteed by the Constitution of Kenya and enabling legislation.

KEG's position

Mr Otieno articulated KEG's position on the matter as Parliament summoned Attorney-General Kihara Kariuki and ICT Principal Secretary Esther Koimett, under whose ministry MCK is domiciled, to appear for questioning on March 3, 2021.

Also expected before the Communication, Information and Innovation Committee of the National Assembly chaired by Marakwet West MP William Kisang is Kenya Union of Journalists (KUJ) Secretary-General Erick Oduor and Kenya Correspondents Association (KCA) Chairperson William Janak.

Mr Oduor chaired the selection panel that included Mr Janak and KEG, among others, that recruited Ms Mutemi to the MCK board in May 2019.

Even as MPs investigate the matter, Mr Otieno said KEG will be petitioning the National Assembly "to urge them to ensure protection of media freedom for the benefit of Kenyan citizens and their democratic rights".

Threat to media freedom

"Any premature direction from the CEO or anybody else is irregular, a threat to independence of MCK and ultimately freedom of media as constitutionally protected. It is illegal," he said.

On January 11, 2021, Mr Omwoyo wrote to MCK board chairman Maina Muiruri stating that Ms Mutemi cannot be a board member of MCK on account of being a State officer.

"The secretariat will no longer recognise Ms Tabitha Mutemi as a board member of the Media Council of Kenya with immediate effect," Mr Omwoyo stated in the letter, copied to Ms Mutemi and ICT Cabinet Secretary Joe Mucheru.

Mr Omwoyo based his argument on the advisory opinion from the Attorney-General claiming that by virtue of Ms Mutemi being in charge of corporate affairs and also the events manager with the Independent Electoral and Boundaries Commission (IEBC), she cannot sit on the MCK board.

Follow laid-down mechanisms

However, Mr Otieno reminded the MCK CEO that any advisory from the Attorney-General that a council member is ineligible to serve cannot be acted upon until the laid-down mechanisms for removal have been followed.

Although the letter caused a ruckus among the other board members, Mr Muiruri, who is supposed to ensure the board functions as a unity, curiously defended Mr Omwoyo's actions.

What Mr Muiruri may not know is the fact that by virtue of the functions of the MCK board, Mr Omwoyo is its employee and, therefore, cannot purport to sack his employers.

"Neither the CEO nor the chairman of MCK has any legal authority to withhold or withdraw recognition of a legally-appointed council member. This is unheard of in corporate governance where the executive is answerable to the council," said the KEG boss.

But what specifically disturbs Mr Otieno and the KEG fraternity is the fact that Mr Omwoyo's letter ignored Section 8 (2) of the MCK Act and the due process as provided for in Section 14 upon which a council board member can be removed.

"It is instructive that Ms Mutemi navigated the application, short-listing, interviews and appointment process without her status as IEBC employee being found to be an impediment by the selection panel and the appointing authority.

"If it was determined later that there was an error or oversight leading to her appointment, the proper course of action would be for any entity desiring rectification of the supposed error to initiate the process," Mr Otieno said.

According to the KEG boss, such is the only process that would lead to revoking the appointment through the requisite notice in the Kenya Gazette "in strict conformity to the law and in a manner that gives primacy to media freedom".

Guided by the MCK Act

The KEG statement reminds Mr Omwoyo that while recruiting Ms Mutemi to the MCK board, the Erick Oduor-led selection panel that shortlisted and interviewed candidates to the MCK board was guided by the MCK Act.

The Act stipulates in Section 8 (2) that a person shall not be qualified for appointment as chairperson or a member of the council if he or she is an MP or an MCA.

The person shall also not be an official of a governing body of a political party and should not have, at any time within the preceding five years, held a political office.

The Act further states that a person shall not be a chairperson or a member of MCK if the individual has been convicted of a felony, has benefited 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.

The KEG boss noted that Ms Mutemi's employment status was canvassed in the selection panel and she was allowed to proceed as per the law.

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 complaint 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 matter, the petition is required to be guided by the principles of fair administration.

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