[kictanet] Poghisio Flouting The Law in The CCK Tussle-by DMakali

[Gitau Andrew]

I agree with Makali on this one. The minister really has no  legal basis to 
hire/ fire a CEO, he can only approve from three names  given to him by the 
board after due process or fire on recommendation  from the board, again after 
due process. 



And due process must have been followed, because we are told  the board in its 
entirety marked him 60 over 100 percent and not over 70  percent as the minister 
mentioned. 


Regarding the DG's performance the board  would know and have  intimate details 
on his performance  over the last three years, that  the rest of us do not have 
access to, since we have not been sitting on  the board and  working with him. 
Some listers also seem to be insinuating that the Board and DG  have presented 
different goals. I will again differ. Performance  contracts are contracts 
between the board and the government. The board  then cascades the 
responsibility of implementing the contract to the DG  and his management team.  
Further, the Board sets the  strategic direction for the commission and again 
the DG is expected to  implement the vision/plan/performance contract  and 
operationalize it  following the Board's instruction.  So it does not make sense 
to keep  claiming that the DG is pro consumer and the board is not  and oh by 
the  way the DG is also a member of the board.  

So rather than have the rather  emotional opinions that are being expressed on 
this list, please note  that as far as the statutes go, on this matter, :
The powers and responsibilities of         the Board of Directors are clearly 
outlined in Section 4(2) of         the  State Corporations           
(Performance Contracting ) Regulations 2004,subject of         course to the 
State Corporations         Act and any other statutes and they include inter 
alia, the           power to: 


“…(b) recruit staff including the chief             executive of the state 
corporation;

(c) develop and negotiate with the             parent Ministry performance 
targets for the state             corporation for a specified             
financial year;

(f) enter into and implement performance contracts with the             chief 
executive of             the state corporation;

(h) perform any other duties that may be deemed necessary or           expedient 
for the implementation of the performance contracts.”
 
Although, as Walu rightly mentions         there is no specific power granted to 
the Board to dismiss/not         renew contracts         of CEO’s either in the 
State Corporations Act or in the Kenya         Information and Communications         
Act, there is a rule of interpretation of statutes that says         that grant 
of a         specific power necessarily implies that it also has the power to         
do the         converse and therefore it is implied that the power of the Board         
to hire includes         the power to fire.’ So therefore the general principle 
is that it is not  within the power of the         Minister to reinstate,         
recruit of dismiss the DG.

Gitau


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