[kictanet] Court Ruling on CCK DG

Thu Aug 11 16:23:55 EAT 2011

Dear colleagues

A well informed source has provided me with the following juicy information.

Warigia

http://www.cofek.co.ke/index.php?option=com_content&view=article&id=409:why-cofek-is-to-contest-cck-director-generals-contract-renewal-in-court&catid=1:latest-news

Consumers Federation of Kenya (Cofek) has today, 4th August 2011,
instructed its lawyers to appear in the High Court next week against
the Attorney General and Minister of Information and Communications
seeking among other issues;

Orders of Certiorari to quash Information and Communications
Minister’s Gazette Notice No. 8925 of the Kenya Information and
Communications Act (No. 2 of 1998) in which he invoked Section 6 (1)
(b) to “appoint” Eng Ccharles J.K Njoroge to be the Director-General
of the Communications Commission of Kenya for a period of three (3)
years, with effect from the 7th July 2011 and which notice was dated
the 20th July 2011 and only published on 29th July 2011
Orders of prohibition against the Minister for Information and
Communications in making unilateral decisions and specifically for;
Ignoring the decision and advice of the Board of the Communications
Commission of Kenya (CCK) vide its letter of 9th March 2011 advising
against renewal of contract/re-appointment of Eng Charles J.K Njoroge
as the Director General. It is noteworthy that the advice from CCK
Board had been accompanied by a clear criteria of evaluation and the
fact that in the considered view of the CCK Board, the said Director
General had performed below threshold - for scoring 60%.
The Minister’s sensationalization  of the matter in the media on
diverse occasions and specifically on the 7th April 2011 in which case
the Minister called a press conference and purported to have revoked
the CCK Board decision asking the Director General to go on a two-week
compulsory leave, and at which press conference he further announced
that he would renew the Director General’s contract for an additional
3 years
That the Minister’s action is a clear contravention of the circular
issued on 23rd November 2010 by Permanent Secretary and Secretary to
the Cabinet and Head of the Public Service Amb Francis K. Muthaura to
all Ministers, Assistant Ministers, Permanent Secretaries, the
Attorney General and the Controller and Auditor General and which
circular was copied to Prof Nick Wanjohi as Private Secretary to His
Excellency the President of the Republic of Kenya. Among other
guidelines contained in the said letter are;  “(a)the CEO of a State
Corporation wishing to be reappointed will indicate interest by
writing to the Board at least six months before expiry of his/her term
 (b) The Board will evaluate the performance of theCEO and make a
report to the appointing authority with a recommendation on either
renewal or termination of the contract upon expiry  (c) In the event
the Board does not recommend renewal of the contract, the CEO will
proceed on terminal leave to pave way for the recruitment and
appointment of a new CEO. This is important to ensure a smooth
transition.  (d) The Board will recruit and acting CEO, in
consultation with the parent Mnistry and the State Corporations
Advisory Committee (SCAC) as provided for by Section 27(1) (c) of Cap.
446 in a caretaker position when the process of recruiting a new CEO
is ongoing”
In view of the foregoing and in light of various provisions of the new
Constitution which among others makes for competitive recruitment of
the Chief Justice, the Minister’s action is a demonstration of
impunity and disregard of the doctrine of separation of powers between
a Minister and a state corporation Board. His action is at best a
selective reading of the applicable laws and at worst a politicization
of sensitive regulatory agencies whose reputation is severely dented
by such unilateral decisions which have neither basis in law or could
said to be part of a civilized society such as Kenya.

On the basis of the directive from Head of Public Service, Cofek urges
the CCK Board to proceed and immediately appoint an acting Director
General as it commences a process of competitively recruiting the new
Director General

Finally, we appeal to all Kenyans of goodwill to rise up in numbers
and support this worthy cause in protecting an apparent attack on the
sanctity of applicable provisions of the Constitution of the Republic
of Kenya. If left unchecked, the Minister’s action will set a bad
precedent of impunity and non-accountability.

Secretary General, Consumers Federation of Kenya (Cofek)

http://allafrica.com/stories/201108110146.html
Communication Commission of Kenya director-general Charles Njoroge
will stay out of office until a case challenging his re-appointment is
heard and determined.

High Court judge David Maraga issued the order following a petition by
the Consumers Federation of Kenya.

Breach of law

The lobby group had challenged Information minister Samuel Poghiso's
re-appointment of Mr Njoroge on grounds that it was unconstitutional
and in breach of the law.

"I am satisfied that the petitioners have made out a case to grant
what the prayers sought. That means the said Charles Njoroge shall
from effect of this date cease to be or to act as the director-general
of Communication Commission of Kenya until the matter is heard and
determined," ruled Justice Maraga.

The decision by the court sitting in Nairobi brought to the fore once
again the controversy that surrounded the director general's tenure
renewal early in the year.

The board, through the chairman, Mr Philip Okundi, had recommended the
termination of Mr Njoroge's three-year term at the helm of the
regulator.

However, after a protracted battle, the minister on July 29
reappointed him in a gazette notice after which the lobby group moved
to court.

In his ruling, Justice Maraga also directed that the commission's
board appoint an acting director-general as the case is being heard.

According to the consumers' lobby, in an application filed by
secretary-general Stephen Mutoro, the minister did not comply with the
law and ignored the board's recommendation.

"His decision was irrational and capricious because he revoked the
board's decision to send Mr Njoroge on a two-week compulsory leave and
at the same time announced he will renew the contract for an
additional three years," read the application.

In reaching his ruling, Justice Maraga noted that the board declined
to recommend him for reappointment and accordingly advised the
minister.

The judge said the minister ignored the board's advice and reappointed
Mr Njoroge for a further three years.

Justice Maraga also allowed the consumer lobby to apply for judicial
review and directed that they file an application within 15 days.

-- 

On 8/11/11, Charles Mutsi <cmutsi at yahoo.com> wrote:
> Solomon,
>
> Who knows who is right or wrong? Let's step back from the specifics of this
> case. Going forward, anybody who takes an oath to  hold public office will
> have to literally uphold and protect the constitution. Most of them are now
> protecting themselves and their cronies. But the game has changed forever.
> The only thing that prevents the political elite realizing this is the
> lethargy and docility of us Kenyans especially the middle class. Any senior
> public official (Minister, PS etc) will have to engage a full time legal
> adviser to ensure that they avoid the pitfalls of the courtroom. BUT... THIS
> IS GOOD. It is part of the price of fighting impunity. In the short term,
> there will be a lot of wrangling. But that is because we have public
> officials who still think they are the Lords of the Ring. Once they
> recognize this reality (please note that it will be painful and long drawn
> for most of them), things will cool down. The courts will become less
> activist and
>  balance will be restored. But the skirmishes will be plenty.
>
> --- On Thu, 8/11/11, Solomon Mbũrũ Kamau <solo.mburu at gmail.com> wrote:
>
> From: Solomon Mbũrũ Kamau <solo.mburu at gmail.com>
> Subject: Re: [kictanet] Court Ruling on CCK DG
> To: "Charles M" <cmutsi at yahoo.com>
> Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
> Date: Thursday, August 11, 2011, 12:17 PM
>
> @ Charles,
> All these depends on a niumber of factors.
> Was the minister acting within the law? Was the re-appointment of
> CCK's DG necessary?
> At times, when we allow courts to act in this way, we might end up
> being a court run country literary. Why? Because everybody will be
> running to the court whenever an issue is going against them.
> Maybe someone needs to tell me, what did the DG fail to do, for me to
> give my opinions. At times, it looks a political survival for some
> leaders who don't want to look any irrelevant.
>
> I'm just lost in this whole cycle.
>
>
> On 11/08/2011, warigia bowman <warigia at aucegypt.edu> wrote:
>> Dear Brian
>>
>> I am with you ndugu!
>>
>> Can you please review the ruling for me? Some of us were upcountry
>> yesterday
>> and only heard it briefly.
>>
>> Yours, Rigia
>>
>> On Thu, Aug 11, 2011 at 3:04 PM, Charles Mutsi <cmutsi at yahoo.com> wrote:
>>
>>> Am I the only one who thinks that yesterday's court ruling is landmark
>>> for
>>> our country and the rule of law. Another nail in the coffin of impunity!!
>>> People this is BIG. Anybody can challenge anything. So our government has
>>> to
>>> walk the straight and narrow!! How many other such irregular appointments
>>> are made by government? Just yesterday, the Honorable PM's OFFICE was
>>> quoted
>>> as ordering the board of Lake Victoria water Services to reinstate the
>>> CEO.
>>> He has also directed the PS to reconstitute the board. A board is
>>> appointed
>>> for a specific tenure. Has their term ended. If not, will such
>>> reconstituting be legal? Is the board obliged to follow a Prime
>>> Ministerial
>>> directive for what is a designated board function? What recourse does the
>>> PM's office have if the board ignore his directive? Take the Koskey case.
>>> The minister disregarded a decision by the board and went ahead to
>>> appoint
>>> someone else. Going forward, political and government leaders will have
>>> to
>>> learn how to influence rather than decree. In the meantime, being a
>>> Minister
>>> is not all it's cracked up to be. You can't even appoint an MD!!
>>>  .
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>>
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>>>
>>> --
>>> Lusiola Brian
>>> |3 R 1 /-\ |\|
>>>
>>>
>>>
>>> -----Inline Attachment Follows-----
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>>> 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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>>>
>>> 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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>
> 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.
>

-- 
Dr. Warigia Bowman
Visiting Assistant Professor
American University in Cairo
Global Affairs and Public Policy
(office)(202)2615-4346
(cell) (201)05590948
www.democratizingegypt.blogspot.com