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

Wed Apr 20 13:16:16 EAT 2011

Guys

no one has really said what the DG did wrong in the first place ....

is anyone in the know ?

On Wed, Apr 20, 2011 at 12:12 PM, Kerubo Ombati <kaykerubo at gmail.com> wrote:

> hey listers,
>
> First, I think the Government circular on appointment of CEO's to
> parastatals is quite clear on the process of appointments of CEO’s and it is
> evident that the Minister has contravened the regulations.
>
>
>
> As far as the statutes go, this is the position:
>
>
>
> *Powers of the Board of Directors in appointments*
>
> * *
>
> 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 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.’
>
>
>
> The general principle is that it is not within the power of the Minister to
> reinstate, recruit of dismiss the CEO.
>
>
>
> *Personal liability of Board members *
>
>
>
> Section 15 of the Kenya Information and Communications Act is clear that
> Board members and officers of the commission shall not be subject to
> personal liability for acts done in good faith for the purpose of executing
> their functions, powers or duties of the CCK under the Act.
>
>
>
> So there is no reason for the Minister to report any of the Board Members
> to KACC for alleged improper conduct when they were acting in good faith and
> in the exercise of their functions for the CCK under the Act. In any case
> the procedure to remove or discipline a Board Member is clearly outlined in
> *Section 11 of the *State* Corporations (Performance Contracting)
> Regulations 2004 :*
>
>
> *“Subject to the provisions of any **other Act*<http://www.kenyalaw.org/kenyalaw/klr_app/view_cap.php?CapID=3>
> *, the Minister may, in consultation with the committee, and based on
> results of evaluation, remove a Director of a state corporation whose
> performance is unsatisfactory.”*
>
>  And more specifically *at Section 2(b)   of the First Schedule to the
> Kenya Information and Communications Act :*
>
> * *
>
> *“2. A member other than the chairman or an ex-officio member may – *
>
> * *
>
> * (b) be removed from office by the Minister if the member - *
>
> *(i) has been absent from three consecutive meetings of the Board without
> the
> permission from chairman; or*
>
> *(ii) is adjudged bankrupt or enters into a composition scheme or
> arrangement
> with his creditors; or*
>
> *(iii) is convicted of an offence involving dishonesty or fraud; or*
>
> *(iv) is convicted of a criminal offence and sentenced to imprisonment for
> a term exceeding six months or to a fine exceeding ten thousand shillings;
> or*
>
> *(v) is incapacitated by prolonged physical or mental illness; or*
>
> *(vi) fails to comply with the provisions of this Act relating to
> disclosure;*
>
> *(vii) is engaged in a communications organization which operates on
> telecommunication system or provides telecommunication services or is
> engaged in the manufacture or distribution of telecommunication equipment in
> Kenya as an owner, shareholder, partner or otherwise, whether directly or
> indirectly.”*
>
>
> Also, the idea of approcahing the Court of Appeal sitting as the Supreme
> Court to seek an advisory opinion is a waste of time.An advisory opinion is
> just that ..it has no binding effect plus.the CIC is already before the
> court seeking an advisory opinion on the appointment of persons to state
> offices,so its better to wait for the outcome of that.
>
> everyone is right that as the appointment has not been gazetted,it cannot
> be said to have been done,but the minister will probably back-date the
> appointment in the gazette notice as he did with the members of the
> Communications Appeals Tribunal.
>
> Once Gazettment is done,the best way to approach the court is by way of
> judicial review.
>
> On Wed, Apr 20, 2011 at 8:00 AM, Walubengo J <jwalu at yahoo.com> wrote:
>
>>  It seems this saga refuses to die...
>> ~~~
>> The Star
>> Tuesday, 19 April 2011 00:04  BY DAVID MAKALI
>>
>> A little over a week ago, Information and Communications minister Samuel
>> Poghisio called a press conference to announce that he had revoked the
>> suspension of the director general of the Communications Commission of
>> Kenya.“For the avoidance of doubt, I wish to state that Charles Njoroge
>> remains in office and that as the appointing authority I will proceed to
>> renew his contract in line with the law,” he stated.
>>
>>
>> The minister’s intervention may have seemed timely and proper. Given the
>> infighting that had become the order of the day at the CCK between the board
>> of directors (or some) and the director-general, some form of external
>> intervention was necessary to establish order.
>>
>> However, questions still linger over what exactly the minister did, if it
>> was legal, and if it is in the interest of the general telecommunications
>> sector and the public in general. At the time of this writing, his
>> re-appointment or otherwise had not been gazetted.
>>
>> more @
>> *http://tinyurl.com/3cddk4h*
>>
>> walu.
>>
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> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform for
> people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
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