The planned appointment of a new director-general of the Communications Authority of Kenya (CA) has temporarily been halted to allow a suit contesting the exercise to be determined.
Employment and Labour Relations Court judge Bryam Ongayo granted the orders in an application filed by Consumers Federation of Kenya (Cofek) through lawyer Henry Kurauka, while also directing that the case be heard together with another filed by activist Okiya Omtatah challenging the appointment of the CA Board.
“The recruitment, selection, and appointment process of the Director-General of the Communications Authority of Kenya (CA) is hereby suspended,” justice Ongaya.
Cofek is concerned that the CA chairman purported to appoint Ms Mercy Wanjau, as the new Director-General, to replace Francis Wangusi who is retiring, yet such a move did not conform to the law on how such an office should be filed.
The law requires that a legitimate board is the one to determine appointment of a CA director-general. Mr Kurauka stated that in the absence of a board, the position cannot be filed.
A three judge bench had earlier suspended the appointment of the new CA board in an urgent application filed by Mr Omtatah where he is challenging the amendments to some sections of the Kenya Information and Communications Act (KICA) which he says were sneaked into law by Parliament through The Statute Law (Miscellaneous Amendments) Act, 2018.
He argues the amendments to the KICA eliminate sections of the Act which provides the all-important fool proof procedure, complete with an independent selection panel, for ensuring that the process of recruiting the chair and members of the Board is fair, open, competitive, merit based, and inclusive, and that the resultant Board is independent of Government.
“It is untenable to remove the checks and balances which ensured that the Board was appointed through a process that guaranteed its autonomy as required under Article 34 (5) (a) of the Constitution,” Mr Omtatah in court papers.
He argues that the amendments make it possible for the Information Cabinet Secretary to handpick and appoint his cronies to the Board, adding that such a move will strip the Board of the autonomy required of it under Article 34 (5) (a) of the Constitution.
He argues that if the amendments are allowed, the Board will be unable to discharge its mandate under the Constitution, including protection to the freedom of the media guaranteed under Article 34 of the Constitution.
He has listed the Attorney General; Kenya Law Reform Commission; National Assembly; Cabinet Secretary Information, Communications and Technology; Hon. Justin Bedan Njoka Muturi (speaker of the national assembly); and Hon. Kenneth Makelo Lusaka (speaker of the senate), as respondents.
The Council of Governors; Katiba Institute; Law Society of Kenya; Child Welfare Society of Kenya; and Communications Authority of Kenya, as interested parties.