A heated battle has ensued between the Media Council of Kenya and IEBC Corporate Communications manager Tabitha Mutemi over her appointment to the council’s board.
In 2019, Ministry of ICT Cabinet Secretary Joe Mucheru appointed Mutemi alongside other seasoned journalists to the MCK board.
However, the appointment was not in line with the Constitution and a directive from the Office of the President barring state officials from holding any other gainful employment in addition to being a public officer.
In a letter dated 3rd February 2016, Head of Public Service Joseph Kinyua cautioned all Cabinet Secretaries and Principal Secretaries against the appointment of public officers to boards of State Corporations.
The letter from Joseph Kinyua, the Chief of staff and Head of Public Service
He directed that all persons appointed to such boards, while at the same time working in different capacities within the government should resign from the boards with immediate effect.
In view of Kinyua’s letter, it's clear that a government officer is not suitable to serve at a board of state corporation, as it amounts to double gainful employment. This was the case with Mutemi’s appointment to Media Council; which is a state-owned corporation as it receives funding from the government.
In 2020, the Ministry of ICT through Principal Secretary Jerome Ochieng sought an advisory opinion from the Office of the Attorney general regarding the appointment of public officers to the Media Council Board, and in response, the AG’s office issued the same communication as provided by Kinyua in his 2016 letter.
“We acknowledge receipt of your letter dated the 16th of June 2020 in which you have sought clarification as to whether a Public Officer can sit as an independent board member of the Media Council of Kenya… 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 OPCAB.9/IA dated 18h of October 2019, which is alluded to in Our letter. 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,” the office of the AG said in response to Ochieng’s letter.
In addition, the AG also quotes section 2 (1) of the fourth schedule to the IEBC Act 2011, which prohibits members of the commission and employees from holding another public office.
"2(1) A member or employee of the commission shall not, during tenure of office be eligible for (a) appointment or nomination to a political office or appointment to another public office."
Cognisant of the advisory from the Attorney General’s office, and in line with the provisions of the Constitution, the Media Council secretariat through its Chief Executive Officer David Omwoyo wrote to the council’s chairman Maina Muiruri informing him that the secretariat will no longer recognize Mutemi as a board member.
“…The secretariat will no longer recognize Ms. Mutemi as a board member of the Media Council of Kenya with immediate effect,” Omwoyo’s letter read in part.
Ms. Mutemi through her lawyers Kilonzo and Company Advocates wrote to the Secretariat arguing that they have no power to remove their client from office as she was appointed by CS Mucheru via a Gazette notice.
“You have no jurisdiction to remove or purport not to recognize 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," Kilonzo and Company advocates said in a letter to the MCK.
Responding to Mutemi’s demand letter, the MCK secretariat through its lawyers Marende and Nyaundi advocates noted that Ms. Mutemi being a full-time employee at IEBC cannot sit on another board of a state corporation as it amounts to double gainful employment.
“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,” the letter read in part.
As it stands, the matter could head to court, as Mutemi is keen to challenge her removal from the council’s board.