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

Wed Apr 20 13:37:15 EAT 2011

We are running away from the actual problem. Legal quotations will not help for 
none of us has the power to make an actionable judgement on this issue. Placing 
a legal lens on a political problem will not produce the required result. A 
political problem must be confronted by a political political solution. 
Dialougue btw the different parties is the way to go and the good thing is that 
the "periphery" players can force the "center" players into this dialogue. Peace 
be among you. KW

________________________________
From: Kerubo Ombati <kaykerubo at gmail.com>
To: jwkabinga at yahoo.co.uk
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Sent: Wed, 20 April, 2011 12:12:57
Subject: Re: [kictanet] Poghisio Flouting The Law in The CCK Tussle-by DMakali

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 
StateCorporations (Performance Contracting) Regulations 2004 :

“Subject to the provisions of any other Act, 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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