Ensuring the independence of key communications bodies from political interference is a widespread concern, as a recent Kenyan ruling shows
IF you thought that the ongoing difficulties in appointing and keeping effective, independent boards for key South African communications bodies made this country somehow unique, think again. Communications and information seem widely contested spheres of influence for governments.
Just last month Kenya published a special gazette announcing that Joe Mucheru, cabinet secretary in the ministry of information and communications – equivalent to a cabinet minister – had appointed four out of seven members of Kenya’s communications authority board, effective immediately.
One of Kenya’s most prodigious public interest litigators, Okiya Omtatah Okoiti, immediately leapt into action. Having won a court order earlier in July for the communications authority to maintain the status quo pending further litigation, he rushed back to court complaining about the latest move.
From the announcement, Okoiti realized that the positions had not been advertised, nor had there been any public participation in the appointments, contrary to a court order he had won in another case earlier this year. So he brought an urgent interim application for the suspension of the gazette notice and prohibiting anyone from giving effect to it.
He argued that the four appointments were a nullity as the process had been inconsistent with the constitution which required ‘an open, fair, competitive, merit-based and inclusive process of recruiting and appointing individuals to public office.’
There also had to be public participation with vacancies advertised, a transparent long- and short-listing process and open hearings.
The minister and his four board members argued, however, that the appointments were lawful because they ‘reflect the interests of all sections of society’ and ‘adhere to the 2/3 gender rule’.
Okoiti said there was no way to be sure that the appointments were appropriate because of the opaque way in which they were made. Unless the court issued an interim interdict to prevent Mucheru’s notice from taking effect, he would appoint a new director general who would be his ‘agent’ and ‘controlled’ by him. Without public participation it was possible for the authorities to hand pick their ‘cronies and hangers-on’ to the board.
In her decision last week, judge Maureen Onyango said the minister should have followed the detailed procedures laid down in the relevant legislation. But he had not done so. There were ‘no advertisements or interviews’, and the appointees’ qualifications and the criteria used to select them were unknown.
In July a court order directed the parties to retain the status quo pending a further hearing, but this had been ignored and it was not disputed that a board meeting had already been scheduled.
The judge added: ‘This impending disobedience of the court order’ confirmed the fear of Okoiti that ‘decisions contrary to public interest were likely to be made’. Okoiti had given the example of 5G licences that were to be issued ‘imminently’, but decisions about the issue that paid due attention to public interest would only be possible if the board were independent.
There were supposed to be clear checks and balances to ensure that the executive did not interfere with the board. Because the appointment of the first four board members was not transparent, however, it was difficult to say whether there had already been or would be, interference.
She said Okoiti had shown that an interim order would ‘enhance freedom of the media, through checks and balances, public participation, transparency and inclusiveness’.
It was necessary for the gazetted notice to be set aside, because the four board members might otherwise make decisions against the public interest that the court would not be able to reverse. There was also a possibility that the minister might appoint the remaining three board members in a way that was not transparent.
‘This court cannot aid the furtherance of a constitutional breach,’ she concluded.
- Financial Mail, August 29 2019