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Divisions emerge over MCK committee report

NAIROBI
By Jennifer Anyango | April 1st 2021

The fate of a staffer at the electoral agency to continue serving in the board of the media regulator now lies with the Members of the National Assembly.

Tabitha Mutemi.

This after the National Assembly ICT committee chaired by William Kipsang concurred with a petition lodged before them by a city lawyer calling for Ms Tabitha Mutemi's sacking on assertions that she is in two gainful employments.

But already MPs who are expected to debate the report in May are threatening to shoot it down, The Standard has reliably established that a sharp slip has emerged among the committee in protest after nominated MP Geoffrey Osotsi dissented opinion was rejected on grounds that it is unconstitutional.

The chair and a first-term legislator have been fingered for leading the malice conspiracy onslaught against Mutemi after the MCK Chief Executive Officer (CEO) David Omwoyo in his submission before the committee, alerted it of a petition on the way to remove Mutemi.

“Rules of natural justice requires that one be treated fairly. Article 95 (2) of the Constitution states that MPs exist to deliberate any matter affecting the citizens and make a determinate,” said an MP.

He continued, “If the law was violated in Mutemi’s recruitment who is to blame, her or CS. How did it take him 10 months to try to suggest that the appointment was unlawful? Parliament is supposed to make decisions to protect citizens from malice conspiracy, where we had a complaint by section of MCK rejected and in the CEO’s presentation before the committee, he signaled that a petition is on the way and it is lodged by a third party, how did he know it on the way coming?

Ososti when contacted said he had prepared a dissenting opinion which was excluded in the report, despite the committee stating it was unlawful.

“I will be writing to the Speaker Justin Muturi to raise concern with the way the committee considered the petition. Parliament is a House of record. This was a petition, we had handled a complaint and now the petition, why would we separate them yet there is registered evidence before us,” questioned Osotsi.

He disclosed, “I wrote a dissenting opinion, which was not included in the final report tabled. We could have ordinarily convened a meeting since the committee got a seven-day extension, we had the time to consider my dissent.
Osotsi says he will seek to inquire from the Speaker the rights of a member who dissents in a committee and if the matter can be decided at the committee level or plenary.

He said he will be seeking Muturis’ guidance before the plenary debate.

“I will request his ruling on the right of a dissenter in the circumstances before us. In the evidence of a dissent, is there a provision where a committee can discuss a report of the dissenter, overrule the rights of a dissenter?" he asked.

The substantive objections raised by Ososti even complicates the matter further, as Media Stakeholders called for fair trial to a process that even saw Kihara’s letter to the selection panel on the matter allegedly disappear but has since surfaced.

 The recommendations of the committee want if the House approves their report to have the ICT Cabinet Secretary (CS) Joe Mucheru suspend Ms Mutemi paving way for the constitution of a three-member tribunal to consider her removal.

Issuing a notice of Motion for debate and approval of the same, Kisang sought the House endorsement of the petition by Muriuki Muriungi, an advocate of the High Court.

The petitioner wants Ms Mutemi, a staff at the Independent Electoral and Boundaries Commission (IEBC) removed from the board as documented in his prayers to the House dated March 11, 2021.

Curiously, the same committee is seized of a petition by the Kenya Editor Guild (KEG) which is in abeyance but prioritized the Muriungi petition as communicated by Speaker Justin Muturi.

The Media Council Act gives parliament seven days to consider the petition and table a report upon receipt.

Kisang acknowledged receiving the KEG petition early last month and promised to consider it, but his assertions remained just that.

“Pursuant to Section 14 (3) of the Act, having considered the petition, detailed submission and evidence presented in writing, committee is satisfied and finds that the complaints contained in the petition merit,” read the recommendations.

It affirms, “Ineligibility of Ms Mutemi for appointment as co9uncil member of MCK discloses grounds for appropriate action in accordance with the provisions of Section 14 (3) and (4) of the Act.”

The recommendations by the committee was on the basis of a petition to have her removed for gross misconduct and in breach of the Constitution by holding two public offices as specified in Section 14 of the Act.

“In response to the prayers, the Committee, therefore, recommends that the complaint be submitted to the Cabinet Secretary, Ministry of Information, Communication and Technology and Youth Affairs for appropriate action in accordance with the provisions of the Media Council Act,” the report reads.

The report said that based on the submissions received, the Committee noted that the petition discloses sufficient grounds for removal from office for Ms Tabitha Mutemi on the basis of her ineligibility for appointment as Council Member, “by dint of being an employee of the IEBC, in breach of written laws, the Constitution and government policy in her appointment; and gross misconduct for failure to adhere to lawful directions by her superiors and appointing authority.”

Committee member Geoffrey Osotsi has however faulted the committee action.

“In their own wisdom, they decide substitute evidence of my dissent. Only looked at a recommendation, purported that the committee interrogate my recommendations,” said the nominated MP.

 On March 25, Kisang sought an extended for 14 days after obtaining approval of the House with effect from March 29, 2021.

The report says Muriungi asked the National Assembly to consider the complaint and if satisfied, it should disclose the grounds for removal of Mutemi.

The Committee was also asked to submit the complaint together with recommendations to the CS for suspension of Mutemi and appoint a tribunal to consider the issues and if it discloses sufficient grounds for removal, recommend to the Cabinet Secretary to remove Mutemi from office in accordance with section 14 of the Media Council Act.

In considering the petition, the committee received responses from Mutemi, the Attorney General Kihara Karuiki, the Head of Public Service Joseph Kinyua, KEG, Kenya Union of Journalists (KUJ), the Independent Electoral and Boundaries Commission (IEBC) and the Kenya Correspondents Association (KCA).

But the stakeholders have poked holes in the report, flying in the face of the defunct Selection Panel which was chaired by the Kenya Union of Journalists (KUJ) Secretary general Eric Oduor.

The recruitment process was nullified and a repeat undertaken based on the High Court ruling on public officers in State Corporation and the Attorney General Kihara Karuiki’s advisory on the same, stating the MCK is not a state body cost taxpayers Sh14million.

Kenyans will not only have to dig deep into their pockets once again to foot the huge bill that will be incurred by the Tribunal operations amidst the harsh COVID-19 times but sanitise the omission of the CS who gazette the council member in October 2019.

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