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

Wed Apr 20 13:43:54 EAT 2011

By the virtue of its mandate as the regulator of the Communication sector in
Kenya it’s extremely imperative that any decision taken relating to CCK’s
leadership be undertaken transparently. On their part the CCK Board argue
that the current DG has underperformed during his three year tenure. This
could be possible.

However any competent board ought to be transparent enough to clearly
publish the parameters leading to particular conclusions especially where
the issue concerned is of utmost public interest. Since the Board is
supposed to be a public trustee there is need for an explanation on the
purported areas of under-performance on the DG’s part given the fact that
the Communication sector has experienced undeniable aspects of growth and
dynamism over the last three years.

For the record, we have seen a fall in Mobile Termination Rates, landing of
three fiber optic cables in the country not to mention the number
portability reality. During the same period, the Unified licensing Framework
has been implemented and the Universal Access Fund has been set up.

Directly resulting from the foregoing measures is a steep decline in
Communication prices, increased affordability of technology products as well
as a broadened scope of access. On the labor side statistics are indicative
of heightened job creation within the ICT sector. In simple terms consumers
have gained enormously over the past two years. Those suggesting that
consumer interests have been sidelined may as well want to provide the newly
discovered definition of the title “consumer”.

Finally, according to the CCK’s Board evaluation report Njoroge only managed
to score a moderate 60%. No one has a basis to dispute this score. All that
is essential at this point is for the Board to disclose what 100%
performance constitutes. Surely, it would be extremely absurd to have an
evaluation exercise that neither has a marking scheme nor a scoring
criterion. Such is an ambush that even the best performer would never
transcend.

Kamotho Njenga

On Wed, Apr 20, 2011 at 3:16 AM, Agosta Liko <agostal at gmail.com> wrote:

> 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.
>>>
>>> _______________________________________________
>>> kictanet mailing list
>>>
>>> kictanet at lists.kictanet.or.ke
>>> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>>>
>>> Unsubscribe or change your options at
>>> http://lists.kictanet.or.ke/mailman/options/kictanet/kaykerubo%40gmail.com
>>>
>>>
>>> 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.
>>>
>>
>>
>> _______________________________________________
>> kictanet mailing list
>> kictanet at lists.kictanet.or.ke
>> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>>
>> Unsubscribe or change your options at
>> http://lists.kictanet.or.ke/mailman/options/kictanet/agostal%40gmail.com
>>
>>
>> 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.
>>
>
>
> _______________________________________________
> kictanet mailing list
> kictanet at lists.kictanet.or.ke
> http://lists.kictanet.or.ke/mailman/listinfo/kictanet
>
> Unsubscribe or change your options at
> http://lists.kictanet.or.ke/mailman/options/kictanet/kamothonjenga%40gmail.com
>
> 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.
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <https://lists.kictanet.or.ke/pipermail/kictanet/attachments/20110420/c08bd1dd/attachment.htm>