Kenya Editors Guild Statement on Purported Removal of MCK Board Member

The Kenya Editors’ Guild is disturbed by the continuing impasse over the attempted removal of a Media Council of Kenya Board Member.

Insofar as it is the body mandated by the Constitution of Kenya to oversee the Media co-regulatory framework, it is our view that any actions which impact the integrity and independence of the Media Council by extension pose a threat to media freedom.

The current issue was ignited on January 11, 2021, when Media Council Chief Executive Officer David Omwoyo wrote to the Chairman Maina Muiruri informing him that the Ms. Tabitha Mutemi was no longer recognised as a member of the MCK Board. Ms Mutemi had been appointed following successful interview by a stakeholder selection panel, and duly gazetted as a member of the MCK board by the Cabinet Secretary for ICT, Innovation and Youth Affairs, Mr. Joe Mucheru on October 31, 2019.

The CEO cited an advisory from the Office of Attorney-General dated August 18, 2020, to the effect that a person holding a public service appointment is prohibited from holding another job in the public office.

The advisory followed a June 16, 2020 request from the Principal Secretary for ICT on whether Ms. Mutemi, an employee of the Independent Electoral and Boundaries Commission, could also serve on the MCK board.

Following the advisory from the Office of the Attorney General, the Principal Secretary in September 26, 2021, wrote to the Media Council directing that Ms. Mutemi could not sit on the Council.

This was the basis on which the CEO subsequently wrote informing the Chairman that the Secretariat no longer ‘recognised’ Ms. Mutemi as a member of the Council.

All these developments are deeply disturbing as they ignore due process, and in particular the laid down mechanism for appointment and removal of MCK Council members. This mechanism by itself underpins independence of the MCK, and by extension independence of the Media.

Kenya Editors’ Guild is a media stakeholder recognised by the Media Council Act, and sat on the Panel which shortlisted and interviewed applicants for Chair and Council Membership of the MCK.

The Media Council Act specifically provided for independent selection panels for the Council and the Media Complaints Commission in order to safeguard media freedom by insulating the appointments process from external pressure and influence.

It is instructive that Ms. Mutemi navigated the application, short-listing, interviews, and appointment process without her status as IEBC employee being found to be an impediment by the selection panel and the appointing authority. In fact, we are aware her employment status was canvassed in the selection panel and she was allowed to proceed.

If it is was determined later that there was an error or oversight leading to her appointment, the proper course of action would be for any entity desiring rectification of the supposed error to initiate the process which would lead to revoking the appointment through the requisite notice in the Kenya Gazette, in strict conformity to the law and in a manner that gives primacy to media freedom.

Neither the CEO nor the Chairman of MCK has any legal authority to withhold or withdraw recognition of a legally-appointed Council Member. This is unheard of in corporate governance where the Executive is answerable to the Council.

Neither does the Cabinet Secretary, as the formal appointing authority, have powers to unilaterally remove any board member without a rigorous process to ensure such protection of media freedom.

The role of the CS is formal appointment of Council members after the selection panel has completed its work. And, the Media Council Act is explicit on who may not serve on the Council.

It follows that any advisory from the A-G that a Council member is ineligible to serve cannot be acted upon until the laid-down mechanisms for removal have been followed.

Any premature direction from CEO or anybody else is irregular, a threat to independence of MCK and ultimately freedom of Media as Constitutionally protected. It is illegal.

We are aware of the position taken by the MCK lawyer that the CEO is bound to act on the Attorney General’s advisory, or otherwise be held personally liable for any expenses incurred on a Council Member found ineligible to serve.

This, in our view, is a deliberate misrepresentation of the law for it presupposes removal of such a Council member in advance of the laid-down process. It could also amount to undue pressure and blackmail on the CEO.

We urge the CEO not to succumb to external pressures that may lead him into committing an illegality, and also into compromising the integrity of his office.

Kenya Editors’ Guild is aware that Ms Mutemi has challenged the purported removal. She has threatened to sue, and has also written to the Speaker of the National Assembly and the relevant Departmental committee in light of the National Assembly’s statutory role in the removal of a Council member who enjoys security of tenure.

In order to uphold integrity of MCK and protect it from unseemly public wrangles, we would urge all sides to pull back and seek a mediated solution. In the first instance, the letter from the Media Council CEO withdrawing recognition of Ms Mutemi as Council Member should be withdrawn immediately.

Thereafter, the CEO, the CS or any other entity seeking to pursue the matter of Ms Mutemi’s eligibility to serve on the MCK Council will be at liberty to do so through the laid-down procedures.

We have heard that the National Assembly’s Departmental Committee on Communication, Information and Innovation has called a meeting of all interested parties on March 3, 2021, to deliberate on the issue. We hope that the meeting will take all matters into consideration towards a just solution that upholds integrity of the media regulatory mechanism and independence of the media.

In the interim, there is no bar against action towards undoing the damage already caused, such as by withdrawal of any contentious letters or directives already issued.

We will be petitioning the National Assembly to urge them to ensure protection of media freedom for the benefit of Kenyan citizens and their democratic rights.

Finally, we would want to state, for avoidance of doubt, that Kenya Editors’ Guild does not hold brief for any person on this matter. Our intervention is not on behalf of Ms. Mutemi, or Mr. Omwoyo, or any other individual or entity, but about upholding and securing the independence and integrity of the media co-regulatory framework established and guaranteed by the Constitution of Kenya and enabling legislation.

By KEG President Churchill Otieno