A major fallout is simmering in the Media Council of Kenya (MCK) following the appointment of the Independent Electoral and Boundaries Commission (IEBC) events manager Ms Tabitha Mutemi as a board member.
Ms Mutemi was appointed to the board by ICT CS Joe Mucheru, but it later emerged that she was an employee of the IEBC.
Kahawa Tungu understands that Mucheru could have been misled by the selection panel into appointing Ms Mutemi, since he had already directed that all government officers be left out in the exercise. However, the panel still forwarded Ms Mutemi’s name to the CS to be appointed as a board member for MCK.
“It has come to the attention of the Ministry that the Selection Panel has interviewed and proposed candidates for appointment to the Board of the Council who currently hold office In Government. I direct that the Panel incorporates fairness in the selection process by applying uniform selection criteria to all applicants and ultimately furnish my office with the names of suitable candidates for appointment,” said Mucheru in the letter.
Following the revelation, MCK wrote to the Office of the Attorney General seeking an advisory on the same.
In its reply through director-general Kennedy Mageto, the office of the Attorney General said that indeed Ms Mutemi was holding two public jobs contrary to the law, recommending she leaves one.
“Given the analysis and findings above, we advise that, holding two public offices is contrary to section 16 of the IEBC Act 2011 as read together with section 2(1) of the Fourth Schedule to the IEBC Act 2011. Further, holding of two public offices contravenes the State Policy as contained in the Circular number OP/CA8.9/1A dated 18th of October 2019. Accordingly, Ms Tabitha Mutemi should not hold the position of an independent Board member of the Media Council of Kenya while she is still in gainful employment under IEBC,” said Mageto in the letter dated August 18, 2020.
Consequently, on January 11, 2021, MCK CEO David Omwoyo wrote to the board chairman Maina Muiruri, saying that he does not recognise Ms Mutemi as a legitimate board member.
“The secretariat will no longer recognise Ms Mutemi as a board member of the Media Council of Kenya with immediate effect,” the letter copied to Ms Mutemi and ICT Cabinet Secretary Joe Mucheru, reads.
In a circular dated February 3, 2016, the head of public service Joseph Kinyua barred all public servants from being appointed as independent board members of government agencies, except where required by law.
“It has been decided that there shall be no more appointments of state officers and public officers to boards of state corporations on their individual capacities, except where the legal instruments establishing a state corporation provide otherwise,” wrote Kinyua.
Following Omwoyo’s letter, Ms Mutemi’s lawyer Kilonzo and Company Advocates, dismissed the removal, terming it as illegal and accusing Omwoyo of overstepping his mandate.
“You have no jurisdiction to remove or purport not to recognise a member appointed by the Cabinet Secretary in a gazette notice. The Cabinet Secretary as the appointing authority is the only person who can cause the removal from office of Ms Mutemi,” read the letter by Kilonzo and Company Advocates.
Acting on behalf of MCK, Marende and Nyaundi Advocates replied to the letter, saying that Owmoyo acted in consonance with the law.
“In the circumstances, the summary of our exposition reduces and solidifies to a simple conclusion: Our client has acted in consonance to the law and as a diligent and conscientious CEO. In so doing he protects both himself and your client from admonition in the utilization of public funds,” wrote Marende and Nyaundi Advocates.
In a letter dated September 16, 2020 by PS Esther Koimett, Ms Mutemi was invited to make an election on whether to continue serving as either a council member of the MCK or as an employee of the IEBC.
“In the circumstances, it is dear that you cannot hold the position of an independent Council Member of the Media Council of Kenya (MCK) while still in gainful employment under the IEBC.
Accordingly, kindly confirm by 30th September 2020, whether you prefer to continue to serve as a Council Member of MCK or as an employee of IEBC,” wrote Koimett.
This writer is informed that Ms Mutemi ignored Koimet’s letter.
Ms Tabitha Mutemi has been at the IEBC where she previously handled the communications department during the 2017 election. The commission has been accused of corruptly awarding tenders when Ms Mutemi and others were in charge of the docket.