AG faults Matiang’i decision on university council tenure

Education CS Fred Matiang’i (left) with AG Githu Muigai at a past consultative forum. The AG has called for status quo in the University of Nairobi Council. [Photo: File, Standard]

The tussle over the formation of the new University of Nairobi Council has taken another twist, with the State Law Office saying the old council ought to be in office.

An advisory opinion by Attorney General Githu Muigai has overruled the process instituted by Education Cabinet Secretary Fred Matiang’i to replace the old team and called for status quo until pending court cases are heard and concluded.

Githu says that the previous council members who were supposedly replaced by Matiang’i “are deemed to be in office” pending hearing and determination of a court application.

The advice is a major blow to Matiang’i who recently constituted 22 university councils after their term expired.

Matiang’i appointed Dr Timothy Mwangi Kiruhi as the new council chair for the University of Nairobi to replace Dr Idle Farah but the new team has never assumed office, thanks to a case lodged at the High Court.

Ms Pascalia Koskey has been the acting chairperson of University of Nairobi Council. The AG’s advice now means that Ms Koskey will continue to act as the council chairperson until a later date.

Universities Act

In his letter dated June 28, the AG says that even though Matiang’i has powers to appoint members of councils through Section 36 of the Universities Act, due procedure must be followed.

“The corresponding power regarding the removal of council members must be in accordance with the University of Nairobi Charter (2012), the Letter of Interim Authority and the State Corporations Act,” said Githu.

He, however, says Matiang’i is not barred from commencing the process afresh as long as it complies with the relevant provisions of the Constitution, State Corporations Act, Letter of Interim Authority and University of Nairobi Charter (2012).

His advice is a response to a request by the University of Nairobi, according to the document seen by Saturday Standard.

In a letter dated March 24, 2017, the university sought legal interpretation of the implication of a court proceeding that it said poses administrative and legal risks to the management and administration its affairs.

The advisory request also came after Matiang’i wrote to Prof Peter Mbithi asking for suspension of all meetings and decisions by the old council.

In his letter titled Status of University Council, Matiang’i makes reference to a telephone conversation with Prof Mbithi on the said subject.

Sticky issues

“This is to charge you with the responsibility of working towards resolving any outstanding issues to ensure that the team of Council members assumes office at the earliest,” said Matiang’i.

The CS directs that: “In the meantime, any purported meetings of the university Council or any processing of decisions that require the approval of the University Council should be suspended until further notice. Any action to the contrary will be deemed violation of the law with attendant consequences.”

But in his letter, Githu says the basis for removing council members must be interrogated in a manner provided by law and respects the fundamental rights of concerned individuals.

He says the legal effect of the temporary order of stay issued by the court on March 23, 2017 suspended the implementation of the gazette notice that intended to effect the new council.

“We further advise the Ministry of Education to seek the guidance of State Corporation Advisory Committee in constituting the Council to avoid further legal dispute pursuant to its mandate under section 27 of the State Corporations Act,” Githu said.

The AG’s letter is copied to Joseph Kinyua, Chief of Staff and Head of Public Service, Matiang’i and Jane Mugambi, the secretary State Corporation Advisory Committee.

Speaking during the orientation meeting with the new councils, Matiang’i said governance structures in universities must be strengthened across all institutions and conflicts of interest addressed.

He asked the new councils to get Commission for University Education (CUE) audit report to enable them address pertinent issued raised in the reports.

“The concerns raised on the quality of university education in Kenya are a true reflection of either poor governance structure or lack of knowledge, skills, attitudes and experience among the members of the university councils,” Matiang’i said.