[kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest

Fri Feb 18 13:07:17 EAT 2011

Thanks Vitalis...your comments will be taken into consideration.

Catherine

________________________________
From: Vitalis Olunga <volunga at yahoo.com>
To: Catherine Adeya <elizaslider at yahoo.com>
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Sent: Fri, February 18, 2011 1:01:04 PM
Subject: Re: [kictanet] Day 5-6: Terms of Office, Removal from Office, 
Remuneration and Conflict of Interest

I suggest the Predient makes the appointment of the chairperson and members 
approved and forwarded by the PSC.  This will give the office assume more powers 
than if the appointment is done by the Cabinet Secretary. I am of the opinion 
that Clauses 5. (1) and 5. (1)   (d) and relelated clauses  remain as they rae. 
Secondly I suggest the veting by Parliament be part of the appointment process. 
This will ake it more difficult for manipulation of the appoint process by the 
President and the PSC.

I also has a problem with Clause 6. (1) (e) on Disqulification. If his or her 
family member has a direct or indirect financial interest in the sector. This 
can be interpretated to mean that if an individual or his/her member of a family 
owns some shares in an a company in the sector then he/her does not qualify to 
be a commissioner. This needs to be qualified further.  I therefore suggest that 
this clause be looked into and be amended to bar only individuls/owners of firms 
with controlling shares in any  company in the sector. It can easily be used 
negatively if not carefully reconsidered.

Coming to the Clauses for today:

Clause 7. Terms of Office: There is some kind of overlap period that needs to be 
taken care of.  The Clause can be amended so that only 50% of the commissioners 
retire at the expiry of their first term. The major challenge will be how to 
decide who to retire. May be the Commissioners can be allowed to vote on this 
amongst themselves. Alternatively it can be determined based on the represatives 
of particular interest, e.g. civil society, consumers. 

I will comment on the other Clauses later.

Regards

Eng. Vitalis Olunga

________________________________
 From: Catherine Adeya <elizaslider at yahoo.com>
To: volunga at yahoo.com
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Sent: Fri, February 18, 2011 5:09:59 AM
Subject: [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration 
and Conflict of Interest

Dear Listers,

Thank you for all of you who contributed to Day 4 discussions on SECTION 5: 
CONSTITUTION AND APPOINTMENT OF COMMISSIONERS TO COMMISSION and SECTION 6: 
DISQUALIFICATION. In summary, Muriuki recommended that the commissioners 
represent the supply side of the equation and there is a need for the demand 
side of the equation which includes civil society, professional societies etc. 
He also cautioned that while aspiring for suitable qualifications, expertise and 
experience, it is possible to get   commissioners who have no interest in this 
sector.  He suggested a framework which includes a full disclosure as a 
condition of appointment and resignation of active participation in the sector.

On the other hand, Walu argued that WHO gets appointed is not as critical as the 
representative structure of the commissioners, which needs to be redefined.  
This is in line with Matunda’s concern that there is a need to consider 
something about need for  diverse backgrounds of commissioners with emphasis on 
technical business leadership, regulatory policy, etc.

Kay Kerubo does not like the idea of Appointees being endorsed by Parliament as 
it could lead to political interference. She suggested that the Chairperson 
should not have a longer term than other Commissioners, that term should be 3 
years in her view. Jane Thuo supported this view adding that if the Chair has a 
longer term he/she will carry baggage to the next Board. She emphasized the need 
for a gender balance rather than the old 30%. Matunda suggested that 

Commissioners appointments should be staggered in such as way that there are  
"overlaps" to ensure continuity; for instance we can have a condition that not 
more than 50% of Commissioner terms can end at the same time.

Finally, Matunda said that the Cabinet secretary (not the President) should make 
appointments on recommendation of PSC. This would be in line with 
decentralization of power that has been at the core of the recently promulgated 
constitution.

DAY 5-6:
The discussion today will flow over to Monday 21 Feb. evening. Feel free to 
write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill:
SECTION 7: TERMS OF OFFICE
SECTION 8: REMOVAL FROM OFFICE
SECTION 10: REMUNERATION
SECTION 12: CONFLICT OF INTEREST
[Kindly show which Section you are discussing, it will help with feedback and 
input to the main Report] 

SECTION 7:
This includes standard issues like length of term for the Chair which is 5 years 
and 4 years for the Commissioners.
7(4) and (5): The point here is that a Commissioner can remain in Office at the 
expiry of his/her term until a successor appointed but this should not exceed 45 
days. The same Commissioner can be re-appointed for one more term.
(6) The point in this sub-section is that a Commissioner serves in full-time 
capacity and not allowed to have any other employment
Question: What do you think particularly of  Section 7 (6) above? Your response 
to this has implications for 8 (1) g on removal from the office you break this 
clause.
SECTION 8:
There are 9 reasons for removal from Office and most are standard but I would 
like you to discuss the following:
8. (1) (e). Incompetence;
Question: Do you think this should be qualified further as it can be subject to 
abuse when so general? Or is it self-explanatory?
What about 8. (1)(h): A commissioner may be removed from office on account of 
failure to disclose an interest in terms of section 12(2)(a) or voting or 
attendance at, or participation in, proceedings of the Commission while having 
an interest contemplated in section 12 (1);
Question: Does this make perfect sense?
Do you think SECTION 12 on CONFLICT OF INTEREST should  come earlier eg. after 
No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be 
before No. 8.? or is it in the right place?
SECTION 10:
REMUNERATION: Basically this has been left to the Minister with concurrence of 
the Minister of Finance.
Question: Your thoughts on this?
SECTION 12: 
While I am in this section, can I comment that the Table of Contents MUST 
synchronize with the main titles in the main body. For example the TOC reads 
‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can 
debatably be two different issues.
So we will discuss ‘CONFLICT OF INTEREST’:
This includes the standard issues but section needs some editing; however there 
are two issues that may be open in discussion:
12(1)(a) A Commissioner may not vote at, attend or in any the manner participate 
in, any meeting or hearing of the Commission, nor be present at the place were 
the meeting is held if --
(b) in relation to an application relating to a licence, he or she or his or her 
family member is a director, member or business partner or associate of or has 
an interest in the business of the applicant or of any person who made 
representation in relation to the application; or……etc
Question: Imagine that this was a determining question in an Exam, asking you to 
simplify this by first explaining what it means? Would you get the pass mark? 
Please try.

Sincerely,

Nyaki

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