The appointment of former deputy Senate Speaker Kembi Gitura to chair the board of the Communications Authority of Kenya (CA) has been challenged in court, setting the stage for another protracted battle for leadership at the key State agency.
President Uhuru Kenyatta on March 10 gazetted the appointment of Mr Gitura as the new CA board chairman starting April 18, 2021. He is set to take over from Mr Ngene Gituku whose term as chairman of the CA board is due to expire.
However, the appointment has now been challenged at the Employment and Labour Relations Court by a Mr Benedict Kabugi Ndungu, who says the president failed to form a select panel to conduct the recruitment of the board’s chairman as required by Sections 6 and 6B of the Kenya Information and Communications (Amendment) Act (KICA) and the amendments done in 2013.
“The impugned appointment is by all means procedurally flawed and ultra vires the lawful powers bestowed upon the appointing authority. The appointment of the interested party (Mr Gitura) herein is arbitrary and excludes other eligible members of the public from competitively bidding for the position. The decision to appoint the interested party unilaterally without a competitive process is so outrageous and a violation of citizenry right to equal benefit and protection of the law,” Mr Ndung’u says in the court papers filed through lawyer Adrian Kamotho.
Through the Statute Law (Miscellaneous Amendments) Act, 2018, Parliament had amended KICA to allow for direct appointment of CA chairman and board members by the President and the ICT Cabinet secretary without engaging a selection panel that would advertise a vacancy and invite applications.
Using new KICA following the amendments, ICT Cabinet Secretary Joe Mucheru in July 2019 appointed new board members Mahmoud Mohamed Noor, Paul Muraguri Mureithi, Jackson Kiprotich Kemboi and Laura Chite amid protests from the Consumers Federation of Kenya (Cofek) who wanted competitive recruitment. The appointments were quashed by the Employment court.
Rather than start the recruitment, Mr Mucheru re-appointed the four in January 2020. The appointments were upheld by the Employment court in May 2020.
Meanwhile, the appointment of the director-general has also been pending. The position was first advertised in May 2020 and re-advertised on June 17 and 19, 2020.
The recruitment to the position has on each of those occasions been the subject of litigation in the corridors of justice over alleged bias in the requirements for candidates.
As a result, Ms Mercy Wanjau has been acting since August 2019.
In the current dispute, the petitioner asserts that the amendments to KICA by Statute Law (Miscellaneous Amendment) Act of 2018 were declared unconstitutional, null and void by the High Court and therefore the requirement for a selection panel is a must.
“The appointment of the interested party herein, is therefore unknown to law and thus untenable. For purposes of law and order, the appointment of the interested party ought to be quashed at the earliest stage to pave way for due process in the filling up of the vacancy of the chairperson of the board of the 2nd respondent,” the petitioner says.
Mr Gitura, who is the former Murang’a Senator, is currently the board chairman of the scandal-plagued Kenya Medical Supplies Agency (Kemsa). The drugs agency has been on the spotlight over the alleged misuse of millions of dollars meant for buying Covid-19 medical supplies.
In the unfolding Kemsa scandal, Mr Gitura has been accused of having had a role in the award of irregular contracts when he directed the CEO Jonah Manjari to ignore the Ethics and Anti-Corruption Commission (EACC) and award the subject contracts.