Court halts appointment of CA board after Omtatah's suit

A three-judge bench of the High Court has temporarily suspended appointment of the new board of the Communications Authority of Kenya.

The tenure of the current board, which served for three years from April 29, 2016, expired on Monday.

Judges Pauline Nyamweya, Mumbi Ngugi, and Weldon Korir granted the orders following an urgent application by activist Okiya Omtatah.

PROCEDURE

The petitioner is challenging amendments to sections 6 (1) (a) & (e) and 6B of the Kenya Information and Communications Act (KICA), which he says were sneaked into law by Parliament through Statute Law (Miscellaneous Amendments) Act, 2018. 

He argues the amendments eliminate section 6(B) which provides the "all-important, fool proof procedure, complete with an independent selection panel, for ensuring the process of recruiting the chair and members of the board is fair, open, competitive, merit-based and inclusive, and that the resultant board is independent of the government".

Mr Omtatah says in the court papers, "It is untenable to remove checks and balances which ensured the board was appointed through a process that guaranteed its autonomy as required under Article 34 (5) (a) of the Constitution."

He adds, "Suspending the impugned amendments will not interfere with or disrupt the operations of the public body as a new board will be appointed under the KICA, as it was before the impugned amendments were made."

MEDIA FREEDOM

The activist further argues that the amendments make it possible for the Information Cabinet Secretary to handpick and appoint his "cronies and hangers-on" to the board.

He notes the move will strip the board of the autonomy required of it under that section of the Constitution.

Mr Omtatah also says that if the amendments are allowed, the board will be unable to discharge its mandate under the Constitution, including protecting media freedom as stated in Article 34 of the Constitution.

CONTEMPT

The activist further says that during the enactment of the Statute Law (Miscellaneous Amendments) Act, 2018, the National Assembly acted in contempt of court, especially during debate.

He says Speaker Justin Muturi "deliberately and contemptuously disregarded the caution raised through a Point of Order by Rarieda MP Otiende Amollo, that the High Court had prohibited use of Statute Law (Miscellaneous Amendments) bills to effect substantive amendments to the statute".

Mr Omtatah adds that no reasonable and meaningful public participation and stakeholder consultation on the amendments took place.

When the bill was introduced to the House, MPs were told it sought to amend the Act to provide for the mode of appointment of the chairperson of the CA.

However, Mr Omtatah says this was "totally misleading" because the amendments did not provide for this mode and eliminated safeguards in law for ensuring  independence of the board appointed.

RESPONDENTS

Mr Omtatah has listed the Attorney-General, Kenya Law Reform Commission, National Assembly, Information CS, Mr Muturi and Senate Speaker Kenneth Lusaka as respondents.

The Council of Governors, Katiba Institute, Law Society of Kenya, Child Welfare Society of Kenya and the CA are interested parties.

The judges directed the activist to serve all the parties with the court papers.

The case will be heard on May 21.