MPs summon AG, MCK boss over plot to kick out board member

Parliament has summoned Attorney-General Kihara Kariuki and Broadcasting and Telecommunications Principal Secretary Esther Koimett over a plot to remove a board member from the Media Council of Kenya (MCK).

The others expected to appear before the Communication, Information and Innovation committee of the National Assembly on March 3 are MCK Chief Executive Officer David Omwoyo, Kenya Union of Journalists (KUJ) Secretary-General Erick Oduor and William Janak, chair of the Kenya Correspondents Association (KCA).

Ms Tabitha Mutemi, the subject of the attempted removal from the MCK board, is also scheduled to appear before the committee chaired by Marakwet West MP William Kisang.

National Assembly Senior Deputy Clerk Jeremiah Ndombi says the committee is acting on a February 2, complaint by Ms Mutemi, alleging an attempt by Mr Omwoyo to unlawfully revoke her membership.

“The committee has considered the matter and deemed it necessary to invite you for a meeting to deliberate on the said complaint,” Mr Ndombi says in the February 24 letter inviting Mr Kihara, Ms Koimett, Mr Omwoyo and Mr Janak.

The letter is copied to ICT Cabinet Secretary Joe Mucheru, whose ministry is in charge of MCK, Kethi Kilonzo of Kilonzo and Company Advocates, which is representing Ms Mutemi, and MCK board chair Maina Muiruri.

The accusations

The Office of the Attorney-General was drawn into the matter after Ms Kilonzo accused it of authorising an advisory that Mr Omwoyo allegedly used to remove Ms Mutemi from the board.

Mr Oduor is required before the committee on account that he chaired the selection panel that recruited Ms Mutemi to the board in 2019. Mr Janak was a member of the  panel.

Ms Kilonzo’s complaint to the committee accuses Mr Omwoyo of targeting Ms Mutemi after she raised concerns over corporate governance and the misuse of the council funds.

“We write to implore you as the lawful offices and officers charged with the removal of any member of the MCK, to use your offices and your powers under the MCK Act to reverse the unlawful action,” Ms Kilonzo says in her letter to the National Assembly Speaker Justin Muturi.

The letter was copied to Mr Mucheru.

Ms Mutemi was appointed to the board through a Gazette notice on October 31, 2019 for a three-year term that expires on October 2, 2022.

Until she finishes serving her term, Ms Kilonzo is categorical that only a tribunal appointed by CS Mucheru can determine if her MCK membership is in violation of the law or the constitution.

In a January 11 letter addressed to the MCK board chair, Mr Omwoyo said the secretariat would immediately cease to recognise Ms Mutemi as a board member.

The letter is copied to Ms Mutemi and CS Mucheru.

Mr Omwoyo cites the 2016 circular by Head of Public Service Joseph Kinyua and the August 18, 2020 advisory opinion from AG Kairuki to ICT Principal Secretary Mr Jerome Ochieng, who at the time was in charge of the MCK.

“Being the accounting officer of the Media Council of Kenya and in essence a public officer, I am bound by the advisory of the Attorney-General,” Mr Omwoyo says.

Security of tenure

However, Ms Kilonzo has questioned the legality of Mr Omwoyo’s actions, noting that the Media Council of Kenya Act “confers on our client security of tenure”.

Ms Kilonzo argues that this procedure was not followed and that the National Assembly should find Mr Omwoyo in violation of the law.

“The CEO, by attempting to use the cloak of the office of the Attorney-General to remove our client, has violated the Constitution and the MCK Act, and usurped your power and authority to actively participate and make recommendations in the matter as stipulated in the Act,” Ms Kilonzo says.

Ms Kilonzo notes that the procedure in the law for removal of an MCK board member was a deliberate act to ensure the security of tenure of the chair and members, and to insulate them from government and political interference including interference from the AG’s office.

“The opinion of the Attorney-General is subject to the MCK Act and must be subjected to the National Assembly, the CS and a Tribunal before our client is removed.”

The law

Section 8 (2) of the MCK Act provides that a person shall not be qualified for appointment as chairperson or member of the council if the person is an MP or MCA, an official of a governing body of a political party, and has, at any time within the preceding five years, held a political office.

It further provides that a person shall not be a chair or a member of MCK if the individual has been convicted of a 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 notes 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”.

“The motives behind the opinion are clear. It was sought by the CEO on June 16, 2020, 10 months after Ms Mutemi’s gazettement and without her knowledge,” she says.

"Our client, in effect, is a whistleblower. The letter dated January 11, 2021 from the CEO is meant to punish her for effectively carrying out her responsibilities.”

She says that although Mr Omwoyo and MCK have been notified of the “unlawful” action in the January 25, 2021 letter, they have refused to reverse the “unlawful” action.

[email protected]