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

Wed Apr 20 11:34:18 EAT 2011

@ Gitau Andrew. Thanks for clarity. Most of us contributing may not be as well versed with law as you seem to be. I may not agree fully with your contribution but I must say it’s well guided by law.

@ Barrack. Tea at Intercon for Minister and Eng. Okundi? Though you might have made this remark lightheartedly, it brings out something; first, we should not personalize this as Eng. Okundi vs Minister issue. I think mentioning Eng. Okundi's name in this is wrong because my understanding is that it was a Board action. If you read Gitau Andrew's contribution, he has mentioned nobody by name but referred to roles of offices and the law. I suggest we our arguments be constrained this way. Lastly, you mention taking tea as a means of resolving the issue. I think this not the way to go. I don’t want to imagine my future is in the hands of two people taking tea! We are either protected by letter and spirit of the constitution or we are not.

Leonard

--- On Wed, 4/20/11, Gitau Andrew <gitauandrew at ymail.com> wrote:

From: Gitau Andrew <gitauandrew at ymail.com>
Subject: Re: [kictanet] Poghisio Flouting The Law in The CCK Tussle-by DMakali
To: mleonardo at yahoo.com
Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
Date: Wednesday, April 20, 2011, 10:46 AM

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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