[kictanet] Media council Draft bill 2010 (Day Four--Appointment of Chair/Procedure for appointment)

Thu Jan 27 17:25:48 EAT 2011

Dear  all
I am inclined to believe this was copy paste from the Judicial Service
Commission bill,( drafting error) hence the reference to  “the Chair
of the Commission”. On the other hand, if that is not the case and
indeed the drafters intention is to have  an advocate as  the chair
then ,these are my comments
.
 1.In other  jurisdictions , for example , Uganda, Tanzania ,
Southafrica,  etc, - where I believe the drafters were borrowing from
, the chair of the council is judge or retired judge, This is mainly
because in these jurisdictions it is the Council that  hears and
determines complaints  unlike the MCK.

The MCK as constituted by both the 2007 Act and the 2010 Bill creates
the Complaints Commission. It is the Commission that hears and
determines complaints. The Chairperson of the commission is a person
qualified to hold the office of a  of the judge of the High Court.
Therefore it is not necessary to make the chair of the Council a
judge, even if the drafters were contemplating an appeal from the
Commission to the Council, as provided for in section 33 of the bill,
the Council already has a an advocate as a member and the  can sit on
the appeals Committee. In view of this, the position of Chairperson
should be open to anyone sitting on the Council, and they should be
elected by the other Council members.

As far as membership to the counci goes, It would be prudent to have
each of the professional bodies drawn from those professions listed
under Section7(c) among other stakeholders, nominate someone to serve
on the Council with a minimum number reserved  for  media
profffesionals.

2. On he JSC being the appointing authority, I believe the idea was to
make the MCK  independent from the government  in the spirit of
article 34(5), however this is inconsistent with the provisions  of
article 172 that outline the mandate of  the JSC. To that extent the
provision is null and void as provided for in article 2(4) of the
Constitution.

On 27/01/2011, Solomon Mburu Kamau <solo.mburu at gmail.com> wrote:
> Dear All,
>
> On 27 January 2011 15:32, k.k. ombati <kaykerubo at gmail.com> wrote:
>
>> Hi,
>> Firstly,I think its unrealistic to decide that the chairman of the MCK
>> must be lawyer and one qualified to be a judge at that.That is too
>> exclusive...i think the postion of chairperson should be open to
>> anyone sitting on the Council.
>>
>
> I agree. The Chair of MCK should not be a person of the position of a judge
> or a lawyer, because, essentially, if we let lawyers and judges be the
> chairs of constitutional bodies, the other professionals will feel left
> out.  This exclusivity should be avoided.
> Still on article 7(c), I find it rather 'choosy'. Ten years experience?
> Doesn't that lock out other interested groups - the youth to be specific -
> from serving in this Council?
>
>
>
>> Secondly,the Act has failed to state how the appointment of
>> chairperson will be done,will it by election by existing council
>> members or nomination or are they to be appointed by the appointing
>> authority.
>>
>> thirdly,to mandate the JSC to appoint members of the MCK is oustide
>> the constitutional mandate of the JSC,I would propose that
>> professional bodies drawn from those professions listed under
>> Section7(c) together with KUJ,Editors Guild and Media Owners
>> Association etc...each nominate someone to take up a position in MCK
>> with a number of seats,say four,reserved for media professionals only.
>>
>>
>> On Thu, Jan 27, 2011 at 12:48 AM, Grace Githaiga <ggithaiga at hotmail.com>
>> wrote:
>> >
>> >
>> >
>> > Good Morning Listers,
>> >
>> >
>> >
>> > Welcome to day four of our debate.
>> >
>> >
>> >
>> > Today, we will focus on the appointment of the Chairperson of the Media
>> > Council, and procedure for appointment of Council Members.
>> >
>> >
>> >
>> > The Appointment of the Chairperson Article 7 (2)
>> >
>> > The chairperson of the Commission shall be a person who is qualified to
>> hold
>> > the office of judge of the High Court under the Constitution.
>> >
>> >
>> >
>> > Question: Should the Chair of a Media Council be drawn from the legal
>> > profession?
>> >
>> >
>> >
>> > Article 8 (1) The Chief Justice shall, within fourteen days of the
>> > commencement of this Act, and every time vacancies shall arise in the
>> > Council, by notice in the gazette declare such vacancies in the Council
>> and
>> > request for applications.
>> >
>> > (2) An application under subsection (1) shall be forwarded to the
>> Judicial
>> > Service Commission within fourteen days…for purposes of considering
>> > applications, interviewing and short listing at least three persons
>> > qualified for appointment as chairperson and nine persons qualified for
>> > appointment as members.
>> >
>> >
>> >
>> > Question:
>> >
>> >
>> >
>> > a)      Article 161 (2) of Kenya’s constitution states that the Chief
>> > Justice is the head of the judiciary.  Should his duties also extend
>> > into
>> > the appointing authority for MCK?
>> >
>> >
>> >
>> > b)      The mandate of the Judicial Service Commission (JSC) as stated
>> > in
>> > article 172 of Kenya’s Constitution is for the judiciary. Should JSC
>> > then
>> > extend its mandate to the Council when its mandate is so clearly stated
>> in
>> > the Constitution?
>> >
>> >
>> >
>> > c)      What would be the alternative appointing authority?
>> >
>> >
>> >
>> > Once again, we would like to hear your comments/views on these critical
>> > issues.
>> >
>> >
>> >
>> > Rgds
>> >
>> > Grace
>> >
>> >
>> >
>> -----------------------------------------------------------------------------------
>> > If you have the strength to survive, you have the power to succeed. Life
>> is
>> > all about choices we make depending upon the situation we are in. Go
>> forth
>> > and rule the World!
>> >
>> >
>> >
>> >
>> >
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>>
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>
>
>
> --
> *Solomon Mbũrũ Kamau*
>
> *****************************************************
> *Man is a gregarious animal and enjoys agreement as cows will graze all the
> same way to the side of a hill!*
>
> AND
>
> *It is better to die in dignity than in the ignominy of ambiguous
> generosity! *
>
> http://smiley2.wordpress.com
> http://mburu.sikika.co.ke
>