Solicitor-General Ken Ogeto has told the National Assembly Communication, Information and Innovation committee that the removal of Ms Tabitha Mutemi as a council member of the Media Council of Kenya (MCK) was irregular as the law and due process were not followed.
While appearing before the committee Wednesday, Mr Ogeto faulted MCK CEO David Omwoyo over the removal. But he maintained that Ms Mutemi was not qualified to be appointed to the MCK council.
"She remains a member of the council as long as the removal process has not been exhausted," Mr Ogeto told the committee chaired by Marakwet West MP William Kisang.
Ms Mutemi, who also appeared before the committee alongside her lawyer Ms Kethi Kilonzo, complained that Mr Omwoyo has since disabled her official email and has had her profile pulled down from the MCK website.
But Mr Omwoyo defended his action saying that he was acting on instructions from Broadcasting and Telecommunications Principal Secretary Esther Koimett -- who also appeared before the committee -- based on the advisory opinion from Mr Ogeto.
The August 2020 advisory opinion by Mr Ogeto, who is the principal assistant to Attorney-General Kihara Kariuki, states that by virtue of Ms Mutemi being the corporate affairs and events manager at the Independent Electoral and Boundaries Commission (IEBC), she cannot sit on the MCK board.
As Mr Ogeto maintained that Ms Mutemi remains a member of the council, IEBC Chairman Wafula Chebukati was fuming.
IEBC not notified
He said that the commission was neither consulted nor notified of Ms Mutemi's employment as board member with MCK.
"The MCK is at liberty to take any action against Ms Mutemi in accordance with the relevant laws," Mr Chebukati said in the March 1, 2021 letter to MCK Board Chairman Maina Muiruri.
"The commission will undertake action at an appropriate time in accordance with the IEBC Act and its human resources procedure manual," he adds.
Mr Ogeto told the National Assembly committee that in acting on his advisory opinion, Mr Omwoyo ought to have been guided by Section 14 of the MCK Act, which details the processes involved in removing an MCK council member.
But Mr Kisang wondered why it had taken the ICT ministry at least 10 months to realise that Ms Mutemi was not properly appointed to the MCK council.
"Does it mean that all this time the ministry did not know that she works for the IEBC? Where was the ministry all this time?" Mr Kisang posed as Kenya Editors Guild (KEG) President Churchill Otieno suggested that the law be amended to make MCK an independent body free from government exigencies.
Appointment and removal procedure
"Our interest in this matter is limited to the procedure of appointment and removal. The law must be followed," Mr Otieno said.
Ainamoi MP Sylvanus Maritim and Nominated MP Godfrey Osotsi noted that the implication of Mr Ogeto's comments is that Mr Omwoyo abused his office by violating the law that he was employed to protect and may therefore be a subject of removal from office proceedings.
"Are you aware of the procedure for the removal from office of an MCK council member? If No, that is incompetence; if yes, you violated the law which is an abuse of office," Mr Maritim said even as Ms Koimett defended the removal.
Section 14 of the MCK Act provides that a person desiring the removal of the chairperson or a member of the council 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. However, this was not followed.
But even as this happened, it emerged that an advisory opinion from the Attorney-General that was used by the selection panel to recruit Ms Mutemi and six others to the MCK council in May 2019 was not provided to the committee.
This is despite claims from Kenya Union of Journalists (KUJ) Secretary-General Erick Oduor, who chaired the panel, that he had tried without success to have the ministry of ICT produce the advisory.
The panel also included Kenya Editors Guild (KEG) and the Kenya Correspondents Association (KCA) among others.
Ms Kethi faulted Mr Ogeto's opinion saying it ought to have been guided by the MCK Act.
Section 8 (2) of 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.
Ms Kilonzo noted that this list of requirements was part of the re-advertisement for the appointment of MCK board members that informed "our client's" application, shortlisting, interview, appointment and gazettement.