[kictanet] Poghisio Flouting The Law in The CCK Tussle-by DMakali
Gitau Andrew
gitauandrew at ymail.com
Wed Apr 20 13:43:21 EAT 2011
>no one has really said what the DG did wrong in the first place ....
>
The issue here is that the DG's contract expires in July 2011. He is required
to submit a renewal request to the board. According to Government circular/s
the board is then required to review his performance before granting renewal or
refusal. And if the board does not recommend renewal, the circular directs that
the DG must be asked to proceed on terminal leave to allow for open recruitment
process to begin.
In this case, the board evaluated and the DG did not make the cut off point
that was set. He was meant to have been sent on terminal leave to allow the
broad to advertise for the position publicly.
So its not so much about what the DG did wrong or right.
Gitau
>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
>>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.
>>>
>>>_______________________________________________
>>>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.
>>>
>>
>>__
>>
________________________________
From: Agosta Liko <agostal at gmail.com>
To: gitauandrew at ymail.com
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Sent: Wed, April 20, 2011 1:16:16 PM
Subject: Re: [kictanet] Poghisio Flouting The Law in The CCK Tussle-by DMakali
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
>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.
>>
>>_______________________________________________
>>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.
>
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