Why Waithaka Waihenya elevation to KBC helm was nullified

The Kenya Broadcasting Corporation (KBC) has no managing director, following the nullification of the employment of the office holder Waithaka Waihenya by the Industrial Court on Friday.

The nullification followed a successful petition by political activist Jared Juma filed in 2012, on grounds that Waihenya's appointment was unconstitutional.

The position fell vacant in 2004 following the removal of David Waweru. His deputy, Mr Waihenya, assumed the office in an acting capacity, and the position was subsequently advertised on September 8, 2010 in the local media.

One of the requirements was that an applicant for the post had to be below 45 years of age.

The job requirements were lower than those of a human resources officer, a position that was also advertised at the same time.

The advertisement did not state the remuneration. It only stated that the appointment would be for an initial contract of three years which would be renewable on the basis of satisfactory performance.

"An attractive remuneration package will be offered to the successful candidate," it read.

Waihenya, a seasoned journalist, applied and was hired as the new KBC boss. In 2012, Mr Juma filed the petition seeking to have the appointment nullified. He argued the case in person.

"By arbitrarily limiting the age of the managing director to be below the age of 45 years, my right and those of other citizens were violated contrary to Article 27 (4) of the Constitution of Kenya," Juma argued.

Disclose salary

He said failure to give the salary scale applicable to the advertised vacancy was a clear violation of the right to information as required under Article 35 (1) (a) and (b) of the Constitution.

The KBC Code of Regulations made it compulsory to disclose the salary in the advertisement, the petition said, adding that the non-disclosure was deliberately intended to mute interest by other persons to the advertised post to give Waihenya undue advantage. Juma asked the court to declare that Waihenya was in office unconstitutionally as a result of the discrimination in the recruitment exercise.

 KBC Chairman Charles Muoki and Mr Waihenya argued that the internal administrative affairs regarding recruitment and appointment of the corporation office bearers are subject to corporate policies and resolutions which are formulated by the Board of Directors.

The Board had the discretion and mandate to recruit and appoint the holder of the MD's position, applying its independent judgement and mandate in deciding the requirements and personal specifications required.

Through lawyer Patricia Khisa, they argued that the specifications attached to the position of the MD were proper and not discriminatory as alleged.

The chairman claimed several institutions and corporations both private and public as well as constitutional offices included and specified age requirements for a particular post.

He said the recruitment of an MD is subjected to guidelines provided in circulars issued in November 2004 and May 2008 providing for a transparent and competitive recruitment exercise for the holder of the position.

They said the job specifications were objective and not tailored to suit any specific candidate, adding that the recruitment exercise was open to all persons who met the criteria and therefore the specifications cannot be said to be discriminatory. The KBC managers asked the court to dismiss the petition with costs.

The court had to decide if the age limit was discriminatory and a violation of article 27 of the Constitution. That article states that the State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture, dress, language or birth".

No law or regulations prescribes the age limit applicable to the occupant of the position of managing director of KBC.

Grossly unreasonable

"It can not therefore be said that the Board of KBC breached any statutory or regulatory provision in its decision to limit the age of the occupier of the position of the Managing Director of KBC to 45 years and below," judge said.

Was the age limit deliberately set to discriminate Mr Juma as a candidate for the post? The petitioner had not stated he was interested in the position or whether he had applied for it and if so, why he was unsuccessful. There was no evidence that the age limit prevented him from applying.

He did not disclose whether he had raised the matter with the Board of KBC at any particular time. Was the age limit contrary to the constitution?

The Constitution does not have a provision of general application dealing with age as a qualifier or disqualifier to hold a state or public office, the judge pointed out.

Even with respect to specific positions such as those of judges, the Constitution provides only for the maximum age up to which a Judge may hold office. It limits the tenure of certain positions such as the President to two terms and the Chief Justice to 10 years.

The judge also noted that the Constitution also limits the requirement of experience for judges to 10 years before appointment. These provisions exclude people who have not attained the requirements.

"Given that Government policy envisages any qualified person to hold office in various cadres, including in the various parastatals such as KBC, what informed the decision by Board of KBC to limit the age of the managing director to 45 years?" the judge wondered.

"Is it a decision in keeping with Public Policy? Is it so restrictive as to be construed as grossly unreasonable and in violation of the right of the petitioner to apply for the position and others above the age of 45 years? Does the decision conform to the minimum core content of equality and non-discrimination under Article 27(4)?" the judge asked.

He said if the corporation acted reasonably, it could not have decided that the MD should be below 45 years.

"The decision was therefore grossly unreasonable as to amount to discrimination on grounds of age contrary to Article 27 (4) of the Constitution. An appropriate balance was not sought in arriving at a cut-off age of 45 years to the loss and detriment of the petitioner and others in his position," the judge concluded.

He ruled that the decision was unconstitutional and nullified Waihenya's 2012 recruitment. He ordered KBC to pay Juma the costs of the suit.

The writer is a court reporter with the Standard Group. Email: [email protected]