REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E040 OF 2023
(consolidated with E 23 of 2023)
JAMES MUTAHI MUCHIRI………………………………..1 ST PETITIONER
ROBERT LEROY OCHIENG……………………………..2 ND PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL……………………..1 ST RESPONDENT
CABINET SECRETARY, MINISTRY OF INFORMATION COMMUNICATION AND DIGITAL ECONOMY …….2 ND RESPONDENT
MEDIA COUNCIL OF KENYA…………………………3 RD RESPONDENT
THE NATION MEDIA GROUP…………………………4 TH RESPONDENT
KENYA EDITORS GUILD………………………………5 TH RESPONDENT
KENYA UNION OF JOURNALIST…………………….6 TH RESPONDENT
MEDIA OWNERS ASSOCIATION……………………..7 TH RESPONDENT
AND
SELECTION PANEL FOR APPOINTMENT OF THE CHAIRPERSON AND MEMBERS OF THE MEDIA COUNCIL OF KENYA………………………………………………INTERESTED PARTY
JUDGMENT
Introduction
The Cabinet Secretary, Ministry of Information Communication and Digital Economy declared vacancies for the position of members of the Media Council of Kenya (the Council) and appointed a selection panel onsisting of persons from various stakeholders as required by law. The members were from Nation Media group; Kenya Editors Guild; Kenya Union of Journalists; Media Owners Association; Consumers Federation of Kenya; Kenya Correspondents Association and the Law Society of Kenya.
The selection panel called for applications from qualified applicants by 3 rd February 2023. Thereafter, the panel published names of the shortlisted applicants in the newspapers on 10 th February 2023. Interviews were scheduled to commence on 15 th February 2023 and conclude on 24 th February 2023.
The appointment of members of the selection panel as well as the shortlist of the applicants for the position of members of the council generated public interest leading to filing of two petitions challenging the constitutionality of the processes as well as some sections of the Media Council Act, 2013. (the Act) The petitions were E040 of 2023 by James Mutahi Muchiri and E23 of 2023 by Robert Leroy Ochieng, (The 1 st and 2 nd petitioners respectively). The two petitions were consolidated with petition E040 of 2023 designated as the lead file.
The petitions are against the Attorney General, the Cabinet Secretary of Information Communication and Digital Economy, Media Council of Kenya, the Nation Media Group, Kenya Editors Guild, Kenya Union of Journalists and Media Owners Association, as the 1 st to 7 th respondents. The Selection Panel for appointment of the chairperson and members of the Media Council of Kenya was joined as the interested party.
The 1 st petitioner’s case- E040 of 2023
James Mutahi Muchiri, the 1 st petitioner, contended that the selection panel and the shortlisted candidates were conflicted, a violation article 34(5) of the Constitution as read with sections 7, 11 and 14 of the Act. This was because half of the shortlisted members were full time employees of media houses and, therefore, would not be independent.
According to the 1 st petitioner, members who are potentially conflicted yet were shortlisted were Charles Erick Oduor a fulltime employee of 4 th respondent and Secretary General of the 6 th respondent and Roselyne Ndisi Oballa also a fulltime employee of the 4 th respondent. Members of the panel who are conflicted were Charles Erick Oduor and Churchill Moses Otieno Auma.
It was the 1 st petitioner’s case, that based on the above facts, some of the potential candidates would have voices in the selection panel that would speak for them. Further, that some of the shortlisted candidates would possibly not prioritize public interest above their personal and commercial interests as they were employees of organisations that they would be regulating with a potential conflict of interest and a violation of Article 10 of the Constitution.
The 1 st petitioner asserted that Article 47 of the Constitution and section 5 of the Fair Administrative Actions Act, 2015 were violated because there was no notice to members of the public allowing them to give comments on the suitability of the selection panel. The 1 st petitioner urged the court to intervene and avert a violation of Articles 10, 20, 21, 34, 35, 47 and 201 of the Constitution.
The 1 st petitioner asserted that the Attorney General gave a legal opinion to the Cabinet Secretary, Ministry of Information, Communication and the Digital economy on the need to guide the recruitment process for the chairperson and members of the Media Council of Kenya and the interpretation and implication of section 14(1) (g) of the Act. The Attorney General was of the opinion that employees of a media house and leadership enterprises are deemed to have interest in the corporation and are therefore precluded from serving in the council based on the conflict-of-interest situation that may arise from the fact that the Media Council receives complaints about media houses.
The 1 st petitioner averred that the Attorney General advised the Cabinet Secretary that having an interest in the media house for whatever reason which might cause a potential conflict of interest situation in the functioning of the Media Council precluded a person from being eligible to be considered for membership in the council unless that person ceased to hold such an interest.
Based on the above arguments, the 1 st petitioner sought the following relief:
A declaration that the process of appointing and /or nominating members of the selection panel of the Media Council of Kenya violated articles 10 and 47 of the Constitution of Kenya.
A declaration that the final shortlist for appointment to the Board of the Media Council of Kenya violates articles 2, 3, 10, 20(4), 34, 35, 47 and 201 of the Constitution of Kenya.
An injunction barring the respondents from commencing, concluding or in any other way progressing the process of appointment of new members of the Media Council of Kenya.
An order of certiorari to bring to this court for purposes of quashing the appointment of the selection panel for members of the Media Council of Kenya as well as the Gazette Notice of 10 th February 2023 shortlisting candidate for selection to the Board of the Media Council of Kenya.
An order of Mandamus compelling the Attorney General to commence the review of the Media Council Act 2013 to align its letter with the spirit of the Constitution within the next twelve (12) months.
The costs of this petition be borne jointly and severally by the respondents.
Petition E 23 of 2023
The 2 nd petitioner also averred that those shortlisted for the position members of the Media Council of Kenya Board were conflicted because some of them were full time employees of the 4 th respondent.
The 2 nd petitioner identified conflicted members of the select panel linked to the 4 th respondent as Emmanuel Juma, Macharia Gaitho and Oscar Obonyo. Emmanuel Juma was a former employee of the 4 th respondent and was appointed by the CEO of the 4 th respondent; Macharia Gaitho was a contracted employee of the 4 th respondent and was nominated by the president of the 5 th respondent who had previously worked with the 4 th respondent. Oscar Obonyo was a contracted employee of the 4 th respondent and was nominated by Charles Erick Oduor, a fulltime employee of the 4 th respondent and his colleague.
The shortlisted members linked to the 4 th respondent were Roselyne Ndisi Obalia, Charles Erick Oduor and Churchill Moses Otieno Auma. Roselyne Ndisi Oballa and Charles Erick Oduor were fulltime employees of the 4 th respondent. Churchill Moses Otieno Auma had recently retired from the 4 th respondent and nominated a former colleague to the selection panel. He was appearing before his appointee and 3 colleagues at work.
The 2 nd petitioner asserted that the 5 th respondent being a media enterprise, was subject to regulatory oversight by the Media Council of Kenya and all its members were subject to accreditation and oversight by the Council. However, three members of the section panel, namely; Emmanuel Juma, Oscar Obonyo and Macharia Gaitho were its members and, therefore, would sit in the selection panel and appoint colleagues to the Medial Council.
It was the 2 nd petitioner’s case that Charles Erick Oduor, nominated a member of the section panel was Erick Odour’s colleagues at the 4 th respondent as was Macharia Gaitho, hence he would be appearing before colleagues.
The 2 nd petitioner argued that based on the foregoing, articles 10 and 34(5) the Constitution would be violated, since applicants for the position of chairperson and members of council would be appearing before colleagues leading to conflict of interest
It was the 2 nd petitioner’s position that the 4 th respondent, having been found guilty of gross violation of the Constitution and the Code of Ethics for the practice of Journalism, defied the orders of the Media Complaints Commission in Complaint No. 5 of 2018- Samuel Muigai v Nation Media Group; Complaint No. 1 of 2022- Victor Adhiambo Ayieko and Others v Nation Media Group and Complaint No. 7 of 2021- Dr. Patrick Njoroge v Nation Media Group.
The 2 nd petitioner stated that while media houses in Kenya expect to be regulated and oversighted by an independent body, they would be regulated by one of their own, the 4 th respondent, which is a threat to press freedom and amounted to unfair competition. The 2 nd petitioner asserted that there would be conflict of interest and violation of the principles in Articles 10 of the Constitution.
The 2 nd petitioner further asserted that there was a violation of Article 47 of the Constitution and section 5 of the Fair Administrative Action Act because there was no notice to the public allowing the public to give comments on the suitability of members of the panel.
The 2 nd petitioner urged the court to allow the petition to avert a violation of Articles 10, 20, 34, 35, 47 and 201 of the Constitution and sought the following relief:
A declaration that the process of identifying the members of the selection panel is an illegality and violates the Constitution and the written law and should be disbanded.
A declaration that the final shortlist for appointment to the Board of the Media Council of Kenya as published on 10 th February 2023 violates articles 2, 3, 20(4), 34, 35, 47 and 201 of the Constitution of Kenya 2010 and section 14 of the Media Council of Kenya Act 2013.
An order quashing the appointment of the selection panel for Board Members of the Media Council of Kenya and the final shortlist for appointment to the Board of the Media Council of Kenya and other activities or processes undertaken by the selection panel.
An order barring the respondents from proceeding in any other way in the process of appointment of new Members of the Media Council of Kenya Board.
An Order barring the 4 th respondent from sending his employees or agents to any process leading to the appointment of members of the Media Council of Kenya Board.
A declaration that sections 7 and 14 of the Media Council Act 2013 are vague and subject to misinterpretation and abuse and thus unconstitutional, null and void.
An order of mandamus compelling the Attorney General and the National Assembly to commence the review of the Media Council Act 2013 to align its letter with the spirit of the Constitution within the next twelve (12) months to allow for the recruitment of an independent and competent Media Council of Kenya Board.
The costs of this petition be borne by the respondents.
1 st and 2 nd respondent’s response
The 1 st and 2 nd respondents opposed the petition through a replying affidavit sworn on their behalf by Prof. Edward W. Kisiangani (Ph.D) and written submissions. He stated that they were not involved in and could not interfere with the selection process and or the decision of the selection panel. By dint of section 7(6) of the Act, the selection panel determines its own procedures and the 2 nd respondent only provides logistical and other support the selection panel may require in order to discharge of its mandate.
According to the 1 st and 2 nd respondents, the 2 nd respondent’s role was to declare vacancies, provide support to the selection panel and appoint the chairperson and members of the 3 rd respondent who comply with requirements once names of deserving candidates have been sent, a mandate they discharged.
The 1 st and 2 nd respondents took the view, that declaring vacancies in the Kenya Gazette; publishing, vacancies in the newspapers and the ministry’s website and calling for applications from qualified persons for the position of chairperson and members of the council, are inbuilt mechanisms for public participation.
3 rd respondent’s response
The 3 rd respondent filed a replying affidavit sworn by David Omwoyo and written submissions. The 3 rd respondent acknowledged the concerns raised in the petition regarding the composition of the selection panel and the shortlisting process of the candidates for appointment to the Council. The 3 rd respondent noted that the nomination and selection process for members of the selection panel was initiated by the 2 nd respondent and the selection panel was constituted by nominating entities as required by section 7(3) of the Act.
The 3 rd respondent emphasized that membership of the Council is important and must comply with the provisions of Articles 10 and 34 of the Constitution. In that regard, the selection, recruitment and the appointment process should be open, transparent, and competitive.
The 3 rd respondent further stated that the recruitment process should be beyond reproach; apprehension of interference; conflict of interest or manipulation. The 3 rd respondent acknowledged the importance of ensuring that individuals appointed to are suitable for the role and in line with Article 34 (5)(a) and (b) of the Constitution. The 3 rd respondent supported any efforts to address any issue that may have arisen during the selection process.
4 th respondent’s response
The 4 th respondent opposed the petition through a replying affidavit sworn by Sekou Owino and written submissions. It was stated that the 4 th respondent had interest in the membership of the council and did not influence the selection process. According to the 4 th respondent, there are no restrictions to any of its employees wishing to be member of the 3 rd respondent.
5 th respondent’s response
The 5 th respondent also opposed the petition through a replying affidavit sworn by Rosalia Omungo and written submissions. It was the 5 th respondent’s position that the petition is misguided, frivolous and an abuse of the court process.
According to the 5 th respondent, the process of establishment, composition and qualification for appointment to the board of the Media Council under section 7(2) of the Act is clear. Section 7(2) mandates the 2 nd respondent to invite applications for and appoint a selection panel for the purposes of selecting suitable persons for appointment as chairperson or members of the council.
The 5 th respondent maintained that the selection panel contemplated by the Act is comprised of thirteen persons nominated by twelve organizations: Kenya Union of Journalists; Media Owners association; Kenya editor’s Guild; the Law Society of Kenya; Kenya Correspondents Association; Public Relations of Kenya; National Gender and Equality Commission; Association of Professional Societies in East Africa; Consumer Federation of Kenya; Ministry of ICT; Kenya News Agency and Public and Private Universities.
The 5 th respondent took the view, that the procedure prescribed under the Act that the organisations should follow when nominating members to the selection panel is a preserve of the organisations’ respective internal processes. The allegation that the selection panel was improperly constituted has not basis.
The 5 th respondent asserted that the petitioners did not prove the allegation that its nominee to the selection Panel (Mr. Macharia Gaitho), was nominated without following due process or disregarded the law. The nomination was a collective decision of its council and not that of its president as alleged.
Regarding the allegation of conflict of interest, the 5 th respondent maintained that the intention of the law on the composition of the selection panel for appointment of members of the Council was to ensure it comprises of stakeholders in the media industry and advances industry led regulatory mechanism as guided by the Act.
According to the 5 th respondent, qualifications for appointment as chairperson or member of the Council are provided for in the Act-knowledge and experience in journalism, public relations and communication fields among others. The allegation that some of the shortlisted persons were affiliated to particular media houses and therefore not fit to hold office in the Council is mistaken.
The 5 th respondent took the position that under section 11 of the Act, the petitioners had not proved how a pre-existing relationship between some of the members of the selection panel and some of the shortlisted candidates would lead to impartial or biased decision making if those candidates were ultimately appointed on account of their qualifications.
The 5 th respondent asserted that members of some of the organisations are mostly journalists or in one way or another affiliated with a media enterprise. Based on this fact, the petitioners’ argument that its nominee, Mr. Macharia Gaitho is unfit to sit in the selection panel on account of his relationship with the 4 th respondent has no basis in law.
6 th respondent’s response
The 6 th respondent opposed the consolidated petitions through a replying affidavit sworn by Charles Eric Oduor and written submissions. The 6 th respondent also maintained that the consolidated petitions are frivolous, vexatious and an abuse of the court process.
The 6 th respondent stated that the 3 rd respondent is a statutory body established as required by article 34 (5) of the Constitution; its operations, powers, duties and obligations are provided for in the Act; section 7 of the Act prescribes the process of constituting the Council and section 8 sets out qualifications and disqualifications to serve as a member of the Council.
The 6 th respondent maintained that constitutionality of the Act and its provisions was determined and affirmed in Nation Media Group Limited and Others v Attorney General & Others [2016] eKLR thus, it is not available for a decision by this court. According to the 6 th respondent, by letter dated 29 th November 2022, the 2 nd respondent, in compliance with section 7 (2) (b), invited the organizations listed in section 7(3) to submit names for appointment to the selection panel.
After internal consultations guided by its Constitution and by-laws, the 6 th respondent’s executive committee settled on Oscar Obonyo to be a member of the selection panel. The 13 organizations listed in section 7(3) of the Act submitted names of their representatives selected in accordance with their own internal rules and procedures.
Regarding the allegation that Oscar Juma and others are all members of the Editors Guild, the 6 th respondent contended that members of the selection panel could not be faulted for belonging to multiple organizations as that is their right under Articles 36 of the Constitution.
Responding to the petitioners’ contention that representatives of Media Owners Association, Kenya Editors Guild, Kenya Union of Journalists, Private Universities and Public Universities in the selection panel were not procedurally chosen was not backed by evidence. The 6 th respondent maintained that after the 2 nd respondent declared vacancies for the position of chairperson and members of the council and convened the panel to receive applications, Mr. Oduor applied for the position of chair and member of the council and was successful. Upon conclusion of the interviews, the selection panel was expected to forward names of the person selected to be chairperson and the persons selected to be members of the Council to the 2 nd respondent for formal appointment.
According to the 6 th respondent, section 11 (7) empowers the Cabinet Secretary to reject any or all nominees on the grounds set out in section 8(2). In that respect, the consolidated petitions are premature as they purport to pre-empt the decisions of the selection panel and the Cabinet Secretary.
Regarding the allegation that the selection panel did not provide an opportunity for receiving public comments, the 6 th respondent stated that the selection panel’s address was publicly accessible and the panel publicized the names of the applicants and the shortlisted candidates in accordance with the law. Out of 7 candidates who applied for the position of chairperson and 41 applicants shortlisted for member of the council, the petitioners only took issue with Mr. Odur’s candidature, that of Roselyne Oballa and Churchill Otieno. The individuals the petitioners singled out hold qualifications required under section 8(1) of the Act and were thus, eligible for appointment as chairperson and member of the Council.
The 6 th respondent contended that pursuant to Article 34 (5) of the Constitution and section 8(2) of the Act, the petitioners did not demonstrate that any of the shortlisted individuals were unfit or disqualified from appointment as chairperson and or members of the Council.
The 6 th respondent took the view, that the petitioners’ argument that its representative, if selected, would interfere with the mandate of the Media Complaints Commission for the benefit of the 4 th respondent is unfounded since the Media Complaints Commission is an independent institution that determines its own procedures and rules.
The 7 th respondent’s response
The 7 th respondent and the interested party did not file responses to thus petition
Submissions
The consolidated petitions were disposed of through written submissions with brief oral highlights.
1 st petitioner’s submissions
The 1 st petitioner submitted maintaining that some of the persons appointed to the selection panel and nominees for membership to Council were conflicted. The 1 st petitioner argued that if successful, they would be charged with regulating themselves which amounts to a violation of article 34 of the Constitution, section 14 of the Act and section 16(1) of the Leadership and Integrity Act, 2012.
The 1 st petitioner submitted that the appointment of the selection panel was on ad hoc basis and failed to comply with articles 10 and 47 of the Constitution as read with the Fair Administrative Action Act. No public notice was issued calling for comments from stakeholders on the suitability of the nominated persons.
The 1 st petitioner took the position that by allowing persons who were conflicted, including Macharia Gaitho and Emmanuel Juma, to sit on the selection panel and also not raising any issue regarding conflict of interest of shortlisted potential members of the Council, the 1 st and 2 nd respondents violated article 3 of the Constitution. Failure to act in a manner that is prescribed by law was both unlawful and unfair thereby constituting unfair administrative action.
The 1 st petitioner asserted that in the event the conflicted selection panel proceeded to appoint chairperson and members of the Council, the council would be inherently biased and conflicted and its decisions ultimately biased and unfair which would lead to a violation of article 34 of the Constitution.
The 1 st petitioner further asserted that contrary to section 4 of the Fair Administrative Action Act, the 1 st and 2 nd respondents acted unlawfully in allowing such conflict to exist in the selection panel and the shortlisted persons. The entire process, the 1 st petitioner argued, lacked transparency and fairness and, therefore, amounted to bad governance and consequently unfair administrative action. The 1 st petitioner relied on the decision in Republic v Fazul Mahamed & 3 others exparte Okiya Omtatah Okoiti [2018] eKLR.
The 1 st petitioner again relied on Mugo & 14 others v Matiangi & another; Independent Electoral and Boundary Commission & 19 others (Interested Party) [2022]KEHC 158 (KLR) for the proposition that there was neither communication of the appointment of the selection panel nor an opportunity for the public and other members of the media fraternity not represented under section 7 of the Media Council Act to give comments about the membership of the selection panel, contrary to section 4(3) of the Fair Administrative Action Act. In the petitioner’s view, there was no public participation thus, the entire process lacked transparency and openness.
The 1 st petitioner argued that section 7(3) of the Act is unconstitutional and discriminatory for violating articles 10(2) and 27 (4) of the Constitution for requiring only 13 organizations to nominate members of the selection panel despite there being over forty organizations in the media industry. The 1 st petitioner relied on the decision in Apollo Mboya v Attorney General & 2 others [2018] eKLR.
The 1 st petitioner again relied on section 27(1) of the Civil Procedure Act and the decisions in Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] eKLR and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR to urge the court to allow the petition with costs.
2 nd petitioner’s submissions
The 2 nd petitioner submitted that articles 10(2), 24 and 27 of the Constitution were violated in the process leading to the appointment of the selection panel due to lack of public participation. The 2 nd petitioner relied on the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR; Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya and 6 others [2017] eKLR; Republic v County Government of Kiambu Exparte Robert Gakuru &another [2016] eKLR; [2016] KEHC 7642 (KLR) and Nelson Andayi Havi v Law Society of Kenya & 2 others [2018] eKLR.
The 2 nd petitioner argued that the selection panel as constituted could not conduct a process that would lead to an independent board because it was conflicted. Reliance was placed on the decision in Okoiti v Attorney General & 5 others [2021] KEHC 439 (KLR). According to the 2 nd petitioner, article 34 of the Constitution was violated and is threatened with further violation. The 2 nd petitioner maintained that the panel is composed of persons who have direct stake in the actions of the council.
It was the 2 nd petitioner’s position that there was need for a review of the process of selecting member of the selection panel so that it is not left to the 2 nd respondent and a few associations only. The 2 nd petitioner argued that to achieve equality, it would be necessary to harmonise sections 7 and 14 of the Act with article 34 of the Constitution. The 2 nd petitioner relied on article 23(3) of the Constitution and urged the court to allow the petition.
1 st and 2 nd respondents’ submissions
The 1 st and 2 nd respondents submitted that there was no conflict of interest in the persons appointed to the selection panel and those shortlisted for appointment as chairperson and members of the Council. They relied on section 14 (1) (g) of the Act and the decision in Kigula & others Attorney General [2005] 1 E.A 132 (at page 133). to argue that employees of media houses and the leadership of media enterprises and/or associations are deemed to have an interest in the corporation and therefore precluded from serving in the Council.
They further argued that the selection panel should be alive to the provisions of section 14(1) (g) and 8 of the Act as read with article 73(2) (b)and (c) of the Constitution and section 16(1) and (2) of the Leadership and Integrity Act when undertaking the process.
In matters of recruitment and/or selection for appointment to a public office, the 1 st and 2 nd respondents submitted that it was both a constitutional and statutory imperative that the recruiting or selecting agency adheres to situations that avoid conflict of interest either in the composition or selection panel of the persons seeking the public positions. Reliance was placed on the decision in eachers Service Commission v Kenya National Union of Teachers (KNUT); Ministry of Labour & Social Protection (Interested Party ) [2019] eKLR.
Regarding avoidance of conflict of interest in appointment to public office, they relied on Republic v Attorney General & 2 others exparte Tom Odoyo Oloo [2016] eKLR. Counsel submitted that the issue raised in the consolidated petitions regarding conflict of interest was addressed by the Attorney General in an advisory dated 23 rd February 2023 to the 2 nd respondent. The advisory concluded that the selection panel was enjoined to make an independent assessment of the objectivity and impartiality of all persons seeking to either be chairperson or member of the Council. Where an instance is demonstrated which would amount to a conflict of interest situation in the functioning of the council, the person would not be eligible to be considered for membership of the council unless the person had ceased to hold such interest.
According to the 1 st and 2 nd respondents, the advisory also pointed out that public officers in the two levels of government are precluded from seeking chairperson or membership of the Council under section 7(1) of the Act.
1t was submitted that section 7(3) of the Act is unconstitutional for being discriminatory by providing for only 13 stakeholders from whom members of the selection panel are to be drawn out of the 40 stakeholders in the industry. They Counsel urged for order in the form of a structural interdict to give Parliament and the 1 st respondent time within wh
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IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CONSTITUTIONAL AND HUMAN RIGHTS DIVISION
CONSTITUTIONAL PETITION NO. E040 OF 2023
(consolidated with E 23 of 2023)
JAMES MUTAHI MUCHIRI………………………………..1 ST PETITIONER
ROBERT LEROY OCHIENG……………………………..2 ND PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL……………………..1 ST RESPONDENT
CABINET SECRETARY, MINISTRY OF INFORMATION COMMUNICATION AND DIGITAL ECONOMY …….2 ND RESPONDENT
MEDIA COUNCIL OF KENYA…………………………3 RD RESPONDENT
THE NATION MEDIA GROUP…………………………4 TH RESPONDENT
KENYA EDITORS GUILD………………………………5 TH RESPONDENT
KENYA UNION OF JOURNALIST…………………….6 TH RESPONDENT
MEDIA OWNERS ASSOCIATION……………………..7 TH RESPONDENT
AND
SELECTION PANEL FOR APPOINTMENT OF THE CHAIRPERSON AND MEMBERS OF THE MEDIA COUNCIL OF KENYA………………………………………………INTERESTED PARTY
JUDGMENT
Introduction
The Cabinet Secretary, Ministry of Information Communication and Digital Economy declared vacancies for the position of members of the Media Council of Kenya (the Council) and appointed a selection panel onsisting of persons from various stakeholders as required by law. The members were from Nation Media group; Kenya Editors Guild; Kenya Union of Journalists; Media Owners Association; Consumers Federation of Kenya; Kenya Correspondents Association and the Law Society of Kenya.
The selection panel called for applications from qualified applicants by 3 rd February 2023. Thereafter, the panel published names of the shortlisted applicants in the newspapers on 10 th February 2023. Interviews were scheduled to commence on 15 th February 2023 and conclude on 24 th February 2023.
The appointment of members of the selection panel as well as the shortlist of the applicants for the position of members of the council generated public interest leading to filing of two petitions challenging the constitutionality of the processes as well as some sections of the Media Council Act, 2013. (the Act) The petitions were E040 of 2023 by James Mutahi Muchiri and E23 of 2023 by Robert Leroy Ochieng, (The 1 st and 2 nd petitioners respectively). The two petitions were consolidated with petition E040 of 2023 designated as the lead file.
The petitions are against the Attorney General, the Cabinet Secretary of Information Communication and Digital Economy, Media Council of Kenya, the Nation Media Group, Kenya Editors Guild, Kenya Union of Journalists and Media Owners Association, as the 1 st to 7 th respondents. The Selection Panel for appointment of the chairperson and members of the Media Council of Kenya was joined as the interested party.
The 1 st petitioner’s case- E040 of 2023
James Mutahi Muchiri, the 1 st petitioner, contended that the selection panel and the shortlisted candidates were conflicted, a violation article 34(5) of the Constitution as read with sections 7, 11 and 14 of the Act. This was because half of the shortlisted members were full time employees of media houses and, therefore, would not be independent.
According to the 1 st petitioner, members who are potentially conflicted yet were shortlisted were Charles Erick Oduor a fulltime employee of 4 th respondent and Secretary General of the 6 th respondent and Roselyne Ndisi Oballa also a fulltime employee of the 4 th respondent. Members of the panel who are conflicted were Charles Erick Oduor and Churchill Moses Otieno Auma.
It was the 1 st petitioner’s case, that based on the above facts, some of the potential candidates would have voices in the selection panel that would speak for them. Further, that some of the shortlisted candidates would possibly not prioritize public interest above their personal and commercial interests as they were employees of organisations that they would be regulating with a potential conflict of interest and a violation of Article 10 of the Constitution.
The 1 st petitioner asserted that Article 47 of the Constitution and section 5 of the Fair Administrative Actions Act, 2015 were violated because there was no notice to members of the public allowing them to give comments on the suitability of the selection panel. The 1 st petitioner urged the court to intervene and avert a violation of Articles 10, 20, 21, 34, 35, 47 and 201 of the Constitution.
The 1 st petitioner asserted that the Attorney General gave a legal opinion to the Cabinet Secretary, Ministry of Information, Communication and the Digital economy on the need to guide the recruitment process for the chairperson and members of the Media Council of Kenya and the interpretation and implication of section 14(1) (g) of the Act. The Attorney General was of the opinion that employees of a media house and leadership enterprises are deemed to have interest in the corporation and are therefore precluded from serving in the council based on the conflict-of-interest situation that may arise from the fact that the Media Council receives complaints about media houses.
The 1 st petitioner averred that the Attorney General advised the Cabinet Secretary that having an interest in the media house for whatever reason which might cause a potential conflict of interest situation in the functioning of the Media Council precluded a person from being eligible to be considered for membership in the council unless that person ceased to hold such an interest.
Based on the above arguments, the 1 st petitioner sought the following relief:
A declaration that the process of appointing and /or nominating members of the selection panel of the Media Council of Kenya violated articles 10 and 47 of the Constitution of Kenya.
A declaration that the final shortlist for appointment to the Board of the Media Council of Kenya violates articles 2, 3, 10, 20(4), 34, 35, 47 and 201 of the Constitution of Kenya.
An injunction barring the respondents from commencing, concluding or in any other way progressing the process of appointment of new members of the Media Council of Kenya.
An order of certiorari to bring to this court for purposes of quashing the appointment of the selection panel for members of the Media Council of Kenya as well as the Gazette Notice of 10 th February 2023 shortlisting candidate for selection to the Board of the Media Council of Kenya.
An order of Mandamus compelling the Attorney General to commence the review of the Media Council Act 2013 to align its letter with the spirit of the Constitution within the next twelve (12) months.
The costs of this petition be borne jointly and severally by the respondents.
Petition E 23 of 2023
The 2 nd petitioner also averred that those shortlisted for the position members of the Media Council of Kenya Board were conflicted because some of them were full time employees of the 4 th respondent.
The 2 nd petitioner identified conflicted members of the select panel linked to the 4 th respondent as Emmanuel Juma, Macharia Gaitho and Oscar Obonyo. Emmanuel Juma was a former employee of the 4 th respondent and was appointed by the CEO of the 4 th respondent; Macharia Gaitho was a contracted employee of the 4 th respondent and was nominated by the president of the 5 th respondent who had previously worked with the 4 th respondent. Oscar Obonyo was a contracted employee of the 4 th respondent and was nominated by Charles Erick Oduor, a fulltime employee of the 4 th respondent and his colleague.
The shortlisted members linked to the 4 th respondent were Roselyne Ndisi Obalia, Charles Erick Oduor and Churchill Moses Otieno Auma. Roselyne Ndisi Oballa and Charles Erick Oduor were fulltime employees of the 4 th respondent. Churchill Moses Otieno Auma had recently retired from the 4 th respondent and nominated a former colleague to the selection panel. He was appearing before his appointee and 3 colleagues at work.
The 2 nd petitioner asserted that the 5 th respondent being a media enterprise, was subject to regulatory oversight by the Media Council of Kenya and all its members were subject to accreditation and oversight by the Council. However, three members of the section panel, namely; Emmanuel Juma, Oscar Obonyo and Macharia Gaitho were its members and, therefore, would sit in the selection panel and appoint colleagues to the Medial Council.
It was the 2 nd petitioner’s case that Charles Erick Oduor, nominated a member of the section panel was Erick Odour’s colleagues at the 4 th respondent as was Macharia Gaitho, hence he would be appearing before colleagues.
The 2 nd petitioner argued that based on the foregoing, articles 10 and 34(5) the Constitution would be violated, since applicants for the position of chairperson and members of council would be appearing before colleagues leading to conflict of interest
It was the 2 nd petitioner’s position that the 4 th respondent, having been found guilty of gross violation of the Constitution and the Code of Ethics for the practice of Journalism, defied the orders of the Media Complaints Commission in Complaint No. 5 of 2018- Samuel Muigai v Nation Media Group; Complaint No. 1 of 2022- Victor Adhiambo Ayieko and Others v Nation Media Group and Complaint No. 7 of 2021- Dr. Patrick Njoroge v Nation Media Group.
The 2 nd petitioner stated that while media houses in Kenya expect to be regulated and oversighted by an independent body, they would be regulated by one of their own, the 4 th respondent, which is a threat to press freedom and amounted to unfair competition. The 2 nd petitioner asserted that there would be conflict of interest and violation of the principles in Articles 10 of the Constitution.
The 2 nd petitioner further asserted that there was a violation of Article 47 of the Constitution and section 5 of the Fair Administrative Action Act because there was no notice to the public allowing the public to give comments on the suitability of members of the panel.
The 2 nd petitioner urged the court to allow the petition to avert a violation of Articles 10, 20, 34, 35, 47 and 201 of the Constitution and sought the following relief:
A declaration that the process of identifying the members of the selection panel is an illegality and violates the Constitution and the written law and should be disbanded.
A declaration that the final shortlist for appointment to the Board of the Media Council of Kenya as published on 10 th February 2023 violates articles 2, 3, 20(4), 34, 35, 47 and 201 of the Constitution of Kenya 2010 and section 14 of the Media Council of Kenya Act 2013.
An order quashing the appointment of the selection panel for Board Members of the Media Council of Kenya and the final shortlist for appointment to the Board of the Media Council of Kenya and other activities or processes undertaken by the selection panel.
An order barring the respondents from proceeding in any other way in the process of appointment of new Members of the Media Council of Kenya Board.
An Order barring the 4 th respondent from sending his employees or agents to any process leading to the appointment of members of the Media Council of Kenya Board.
A declaration that sections 7 and 14 of the Media Council Act 2013 are vague and subject to misinterpretation and abuse and thus unconstitutional, null and void.
An order of mandamus compelling the Attorney General and the National Assembly to commence the review of the Media Council Act 2013 to align its letter with the spirit of the Constitution within the next twelve (12) months to allow for the recruitment of an independent and competent Media Council of Kenya Board.
The costs of this petition be borne by the respondents.
1 st and 2 nd respondent’s response
The 1 st and 2 nd respondents opposed the petition through a replying affidavit sworn on their behalf by Prof. Edward W. Kisiangani (Ph.D) and written submissions. He stated that they were not involved in and could not interfere with the selection process and or the decision of the selection panel. By dint of section 7(6) of the Act, the selection panel determines its own procedures and the 2 nd respondent only provides logistical and other support the selection panel may require in order to discharge of its mandate.
According to the 1 st and 2 nd respondents, the 2 nd respondent’s role was to declare vacancies, provide support to the selection panel and appoint the chairperson and members of the 3 rd respondent who comply with requirements once names of deserving candidates have been sent, a mandate they discharged.
The 1 st and 2 nd respondents took the view, that declaring vacancies in the Kenya Gazette; publishing, vacancies in the newspapers and the ministry’s website and calling for applications from qualified persons for the position of chairperson and members of the council, are inbuilt mechanisms for public participation.
3 rd respondent’s response
The 3 rd respondent filed a replying affidavit sworn by David Omwoyo and written submissions. The 3 rd respondent acknowledged the concerns raised in the petition regarding the composition of the selection panel and the shortlisting process of the candidates for appointment to the Council. The 3 rd respondent noted that the nomination and selection process for members of the selection panel was initiated by the 2 nd respondent and the selection panel was constituted by nominating entities as required by section 7(3) of the Act.
The 3 rd respondent emphasized that membership of the Council is important and must comply with the provisions of Articles 10 and 34 of the Constitution. In that regard, the selection, recruitment and the appointment process should be open, transparent, and competitive.
The 3 rd respondent further stated that the recruitment process should be beyond reproach; apprehension of interference; conflict of interest or manipulation. The 3 rd respondent acknowledged the importance of ensuring that individuals appointed to are suitable for the role and in line with Article 34 (5)(a) and (b) of the Constitution. The 3 rd respondent supported any efforts to address any issue that may have arisen during the selection process.
4 th respondent’s response
The 4 th respondent opposed the petition through a replying affidavit sworn by Sekou Owino and written submissions. It was stated that the 4 th respondent had interest in the membership of the council and did not influence the selection process. According to the 4 th respondent, there are no restrictions to any of its employees wishing to be member of the 3 rd respondent.
5 th respondent’s response
The 5 th respondent also opposed the petition through a replying affidavit sworn by Rosalia Omungo and written submissions. It was the 5 th respondent’s position that the petition is misguided, frivolous and an abuse of the court process.
According to the 5 th respondent, the process of establishment, composition and qualification for appointment to the board of the Media Council under section 7(2) of the Act is clear. Section 7(2) mandates the 2 nd respondent to invite applications for and appoint a selection panel for the purposes of selecting suitable persons for appointment as chairperson or members of the council.
The 5 th respondent maintained that the selection panel contemplated by the Act is comprised of thirteen persons nominated by twelve organizations: Kenya Union of Journalists; Media Owners association; Kenya editor’s Guild; the Law Society of Kenya; Kenya Correspondents Association; Public Relations of Kenya; National Gender and Equality Commission; Association of Professional Societies in East Africa; Consumer Federation of Kenya; Ministry of ICT; Kenya News Agency and Public and Private Universities.
The 5 th respondent took the view, that the procedure prescribed under the Act that the organisations should follow when nominating members to the selection panel is a preserve of the organisations’ respective internal processes. The allegation that the selection panel was improperly constituted has not basis.
The 5 th respondent asserted that the petitioners did not prove the allegation that its nominee to the selection Panel (Mr. Macharia Gaitho), was nominated without following due process or disregarded the law. The nomination was a collective decision of its council and not that of its president as alleged.
Regarding the allegation of conflict of interest, the 5 th respondent maintained that the intention of the law on the composition of the selection panel for appointment of members of the Council was to ensure it comprises of stakeholders in the media industry and advances industry led regulatory mechanism as guided by the Act.
According to the 5 th respondent, qualifications for appointment as chairperson or member of the Council are provided for in the Act-knowledge and experience in journalism, public relations and communication fields among others. The allegation that some of the shortlisted persons were affiliated to particular media houses and therefore not fit to hold office in the Council is mistaken.
The 5 th respondent took the position that under section 11 of the Act, the petitioners had not proved how a pre-existing relationship between some of the members of the selection panel and some of the shortlisted candidates would lead to impartial or biased decision making if those candidates were ultimately appointed on account of their qualifications.
The 5 th respondent asserted that members of some of the organisations are mostly journalists or in one way or another affiliated with a media enterprise. Based on this fact, the petitioners’ argument that its nominee, Mr. Macharia Gaitho is unfit to sit in the selection panel on account of his relationship with the 4 th respondent has no basis in law.
6 th respondent’s response
The 6 th respondent opposed the consolidated petitions through a replying affidavit sworn by Charles Eric Oduor and written submissions. The 6 th respondent also maintained that the consolidated petitions are frivolous, vexatious and an abuse of the court process.
The 6 th respondent stated that the 3 rd respondent is a statutory body established as required by article 34 (5) of the Constitution; its operations, powers, duties and obligations are provided for in the Act; section 7 of the Act prescribes the process of constituting the Council and section 8 sets out qualifications and disqualifications to serve as a member of the Council.
The 6 th respondent maintained that constitutionality of the Act and its provisions was determined and affirmed in Nation Media Group Limited and Others v Attorney General & Others [2016] eKLR thus, it is not available for a decision by this court. According to the 6 th respondent, by letter dated 29 th November 2022, the 2 nd respondent, in compliance with section 7 (2) (b), invited the organizations listed in section 7(3) to submit names for appointment to the selection panel.
After internal consultations guided by its Constitution and by-laws, the 6 th respondent’s executive committee settled on Oscar Obonyo to be a member of the selection panel. The 13 organizations listed in section 7(3) of the Act submitted names of their representatives selected in accordance with their own internal rules and procedures.
Regarding the allegation that Oscar Juma and others are all members of the Editors Guild, the 6 th respondent contended that members of the selection panel could not be faulted for belonging to multiple organizations as that is their right under Articles 36 of the Constitution.
Responding to the petitioners’ contention that representatives of Media Owners Association, Kenya Editors Guild, Kenya Union of Journalists, Private Universities and Public Universities in the selection panel were not procedurally chosen was not backed by evidence. The 6 th respondent maintained that after the 2 nd respondent declared vacancies for the position of chairperson and members of the council and convened the panel to receive applications, Mr. Oduor applied for the position of chair and member of the council and was successful. Upon conclusion of the interviews, the selection panel was expected to forward names of the person selected to be chairperson and the persons selected to be members of the Council to the 2 nd respondent for formal appointment.
According to the 6 th respondent, section 11 (7) empowers the Cabinet Secretary to reject any or all nominees on the grounds set out in section 8(2). In that respect, the consolidated petitions are premature as they purport to pre-empt the decisions of the selection panel and the Cabinet Secretary.
Regarding the allegation that the selection panel did not provide an opportunity for receiving public comments, the 6 th respondent stated that the selection panel’s address was publicly accessible and the panel publicized the names of the applicants and the shortlisted candidates in accordance with the law. Out of 7 candidates who applied for the position of chairperson and 41 applicants shortlisted for member of the council, the petitioners only took issue with Mr. Odur’s candidature, that of Roselyne Oballa and Churchill Otieno. The individuals the petitioners singled out hold qualifications required under section 8(1) of the Act and were thus, eligible for appointment as chairperson and member of the Council.
The 6 th respondent contended that pursuant to Article 34 (5) of the Constitution and section 8(2) of the Act, the petitioners did not demonstrate that any of the shortlisted individuals were unfit or disqualified from appointment as chairperson and or members of the Council.
The 6 th respondent took the view, that the petitioners’ argument that its representative, if selected, would interfere with the mandate of the Media Complaints Commission for the benefit of the 4 th respondent is unfounded since the Media Complaints Commission is an independent institution that determines its own procedures and rules.
The 7 th respondent’s response
The 7 th respondent and the interested party did not file responses to thus petition
Submissions
The consolidated petitions were disposed of through written submissions with brief oral highlights.
1 st petitioner’s submissions
The 1 st petitioner submitted maintaining that some of the persons appointed to the selection panel and nominees for membership to Council were conflicted. The 1 st petitioner argued that if successful, they would be charged with regulating themselves which amounts to a violation of article 34 of the Constitution, section 14 of the Act and section 16(1) of the Leadership and Integrity Act, 2012.
The 1 st petitioner submitted that the appointment of the selection panel was on ad hoc basis and failed to comply with articles 10 and 47 of the Constitution as read with the Fair Administrative Action Act. No public notice was issued calling for comments from stakeholders on the suitability of the nominated persons.
The 1 st petitioner took the position that by allowing persons who were conflicted, including Macharia Gaitho and Emmanuel Juma, to sit on the selection panel and also not raising any issue regarding conflict of interest of shortlisted potential members of the Council, the 1 st and 2 nd respondents violated article 3 of the Constitution. Failure to act in a manner that is prescribed by law was both unlawful and unfair thereby constituting unfair administrative action.
The 1 st petitioner asserted that in the event the conflicted selection panel proceeded to appoint chairperson and members of the Council, the council would be inherently biased and conflicted and its decisions ultimately biased and unfair which would lead to a violation of article 34 of the Constitution.
The 1 st petitioner further asserted that contrary to section 4 of the Fair Administrative Action Act, the 1 st and 2 nd respondents acted unlawfully in allowing such conflict to exist in the selection panel and the shortlisted persons. The entire process, the 1 st petitioner argued, lacked transparency and fairness and, therefore, amounted to bad governance and consequently unfair administrative action. The 1 st petitioner relied on the decision in Republic v Fazul Mahamed & 3 others exparte Okiya Omtatah Okoiti [2018] eKLR.
The 1 st petitioner again relied on Mugo & 14 others v Matiangi & another; Independent Electoral and Boundary Commission & 19 others (Interested Party) [2022]KEHC 158 (KLR) for the proposition that there was neither communication of the appointment of the selection panel nor an opportunity for the public and other members of the media fraternity not represented under section 7 of the Media Council Act to give comments about the membership of the selection panel, contrary to section 4(3) of the Fair Administrative Action Act. In the petitioner’s view, there was no public participation thus, the entire process lacked transparency and openness.
The 1 st petitioner argued that section 7(3) of the Act is unconstitutional and discriminatory for violating articles 10(2) and 27 (4) of the Constitution for requiring only 13 organizations to nominate members of the selection panel despite there being over forty organizations in the media industry. The 1 st petitioner relied on the decision in Apollo Mboya v Attorney General & 2 others [2018] eKLR.
The 1 st petitioner again relied on section 27(1) of the Civil Procedure Act and the decisions in Orix Oil (Kenya) Limited v Paul Kabeu & 2 others [2014] eKLR and Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR to urge the court to allow the petition with costs.
2 nd petitioner’s submissions
The 2 nd petitioner submitted that articles 10(2), 24 and 27 of the Constitution were violated in the process leading to the appointment of the selection panel due to lack of public participation. The 2 nd petitioner relied on the decisions in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR; Independent Electoral and Boundaries Commission (IEBC) v National Super Alliance (NASA) Kenya and 6 others [2017] eKLR; Republic v County Government of Kiambu Exparte Robert Gakuru &another [2016] eKLR; [2016] KEHC 7642 (KLR) and Nelson Andayi Havi v Law Society of Kenya & 2 others [2018] eKLR.
The 2 nd petitioner argued that the selection panel as constituted could not conduct a process that would lead to an independent board because it was conflicted. Reliance was placed on the decision in Okoiti v Attorney General & 5 others [2021] KEHC 439 (KLR). According to the 2 nd petitioner, article 34 of the Constitution was violated and is threatened with further violation. The 2 nd petitioner maintained that the panel is composed of persons who have direct stake in the actions of the council.
It was the 2 nd petitioner’s position that there was need for a review of the process of selecting member of the selection panel so that it is not left to the 2 nd respondent and a few associations only. The 2 nd petitioner argued that to achieve equality, it would be necessary to harmonise sections 7 and 14 of the Act with article 34 of the Constitution. The 2 nd petitioner relied on article 23(3) of the Constitution and urged the court to allow the petition.
1 st and 2 nd respondents’ submissions
The 1 st and 2 nd respondents submitted that there was no conflict of interest in the persons appointed to the selection panel and those shortlisted for appointment as chairperson and members of the Council. They relied on section 14 (1) (g) of the Act and the decision in Kigula & others Attorney General [2005] 1 E.A 132 (at page 133). to argue that employees of media houses and the leadership of media enterprises and/or associations are deemed to have an interest in the corporation and therefore precluded from serving in the Council.
They further argued that the selection panel should be alive to the provisions of section 14(1) (g) and 8 of the Act as read with article 73(2) (b)and (c) of the Constitution and section 16(1) and (2) of the Leadership and Integrity Act when undertaking the process.
In matters of recruitment and/or selection for appointment to a public office, the 1 st and 2 nd respondents submitted that it was both a constitutional and statutory imperative that the recruiting or selecting agency adheres to situations that avoid conflict of interest either in the composition or selection panel of the persons seeking the public positions. Reliance was placed on the decision in eachers Service Commission v Kenya National Union of Teachers (KNUT); Ministry of Labour & Social Protection (Interested Party ) [2019] eKLR.
Regarding avoidance of conflict of interest in appointment to public office, they relied on Republic v Attorney General & 2 others exparte Tom Odoyo Oloo [2016] eKLR. Counsel submitted that the issue raised in the consolidated petitions regarding conflict of interest was addressed by the Attorney General in an advisory dated 23 rd February 2023 to the 2 nd respondent. The advisory concluded that the selection panel was enjoined to make an independent assessment of the objectivity and impartiality of all persons seeking to either be chairperson or member of the Council. Where an instance is demonstrated which would amount to a conflict of interest situation in the functioning of the council, the person would not be eligible to be considered for membership of the council unless the person had ceased to hold such interest.
According to the 1 st and 2 nd respondents, the advisory also pointed out that public officers in the two levels of government are precluded from seeking chairperson or membership of the Council under section 7(1) of the Act.
1t was submitted that section 7(3) of the Act is unconstitutional for being discriminatory by providing for only 13 stakeholders from whom members of the selection panel are to be drawn out of the 40 stakeholders in the industry. They Counsel urged for order in the form of a structural interdict to give Parliament and the 1 st respondent time within wh
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