AG’s conflicting advisory

An advisory by the Office of the Attorney General approving the appointment of the Independent Electoral and Boundaries Commission (IEBC) Communications Manager Tabitha Mutemi (pictured) as a board member of the Media Council of Kenya (MCK) has emerged.

The document conflicts with another issued by the same office disqualifying Mutemi from holding the position while still serving as an employee of the electoral commission.

This comes on the backdrop of a petition to the National Assembly to have her fired from the board for gross misconduct, and in breach of the Constitution for holding two public offices.

According to IEBC Act, members and employees of the commission are prohibited from holding other public offices during their tenure.

In the May 9, 2019 advisory to ICT Cabinet Secretary Joe Mucheru, AG Paul Kihara said: “The State Corporations Act does not prohibit the appointment of public officers serving at any level of government as members of boards of a State corporation.”

The advisory by the AG had been issued in September 2020 upon a request by the ICT ministry.

The differences between Mutemi and MCK have been brewing for months and it was not until in January that there appeared to be a fallout.

On January 11, MCK Chief Executive David Omwoyo informed the board that they would no longer pick tabs for expenses incurred by Mutemi, citing an advisory by the AG that she cannot be an IEBC staffer and an MCK board member. MCK and Kihara have been silent on the advisory issued in May 2019 by the AG during the recruitment of the council board members. The advisory was at the request of a committee that was to undertake the recruitment.

Eric Oduor, the chair of the now-defunct selection panel, admitted that they relied on advice by the AG.

In a letter to the National Assembly Speaker dated March 29, Oduor noted that the AG was specific that MCK was not a State corporation and hence the IEBC law did not bar Mutemi from holding a board seat.

“In the advisory dated May 9, 2019, the Attorney General advised that the only bar to a person being appointed to the board of a State corporation was where the individual was a State officer or a board member of other State corporations within the national government,” said Oduor.

Despite the existence of the earlier advisory, the AG’s office has stuck to its later advice that Mutemi cannot be a board member of MCK and an employee of IEBC.

Recently, Solicitor General Kennedy Ogeto denied knowledge of the advisory when he appeared before the National Assembly Committee on Communication, Information and Innovation over Mutemi’s ouster from the board.

Instead, Ogeto only referred to another conflicting advisory that stated that her continued stay in office was in contravention of the law and IEBC Act.

In Parliament, a petitioner, Muriuki Muriungi, argues that Mutemi’s holding of the two offices was in contravention of the Constitution.