Court orders gov't to appoint omitted members of Media Complaints Commission
The High Court has directed the Cabinet Secretary for ICT to immediately appoint and gazette two individuals who were unlawfully excluded from the Media Complaints Commission, in a landmark judgment that reaffirms the principles of fair administrative action and media independence.
In a ruling delivered virtually on Wednesday, Justice Bahati Mwamuye found that the exclusion of Ms Lucy Minayo Lugalia and Mr Antony Nzau Musau--despite their nomination by the legally constituted Selection Panel--was unconstitutional and procedurally unfair.
“The Respondents violated Articles 47(1) and 34(5) of the Constitution by the manner in which they treated the Petitioners’ appointments,” stated Justice Mwamuye.
The two(2) Petitioners had been among six(6) individuals shortlisted, interviewed, and selected for appointment to the Media Complaints Commission. However, the final Gazette Notice of July 12; 2024 contained only four names, excluding the Petitioners without any formal disqualification process or explanation.
“The Gazette Notice as published was not fully in compliance with the law. It omitted two lawfully selected persons,” the Judge noted, dismissing the government’s argument that the vacancies could be filled later.
The Court quashed a letter dated July 8, 2024, from the Principal Secretary, which had communicated the rejection of the Petitioners, and held that the rejection was “ultra vires and thus null and void.”
Justice Mwamuye further issued an order of mandamus compelling the ICT Cabinet Secretary to gazette the names of the two(2) Petitioners within 14 days, asserting that the delay in their appointment had no legal justification.
“There is really no new decision to be made – the Selection Panel’s decision was clear and, absent any valid reasons to the contrary, the Petitioners should have been appointed long ago,” he ruled.
The judgment also restrains the government from appointing any other persons to the two(2) specific member positions in question, thereby preventing any attempt to bypass the ruling.
“To remand for ‘reconsideration’ would serve no purpose except to delay justice and perhaps invite new extraneous manoeuvers,” the Judge warned, echoing precedent from the Adrian Kamotho case on judicial appointments.
While affirming the legality of the already sworn-in Chairperson and four( members of the Commission, the Court held that the Petitioners must be installed to constitute a full Commission as envisioned by law.
The Petitioners were also awarded costs of the petition.
The ruling is expected to have far-reaching implications on how independent commissions are constituted in Kenya, especially where political or administrative interference undermines transparent selection processes.
