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@gmail.com> wrote:
Dear All,
On 27 January 2011 15:32, k.k. ombati <kaykerubo@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@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
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