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

Fri Feb 18 18:19:27 EAT 2011

Hi Cathy 

Thanks for sustaining the debate -----   

Section 11

My concern is meetings of the  ICCK  . firstly, we need to get a clause to make it possible for an interested party to have access to the meeting minutes .   it augers well with transparency  and supports the independence  of the commission , secondly, section 11(3) is not good . how can those present make a quorum.  Without a  floor one or two commissioners can make a quorum and do a formal meeting while doing nyama choma  in masai mara considering that  meetings can be held anywhere  - in fact even outside kenya!!!. We need a floor . Quorum should start from 5. These guys are full time employees and so should be available . Meetings should be held in the republic of Kenya

The minimum number of meetings per year should be specified  - lets put a floor --- the guys can go to bed  after appointment . the old Act has a floor --- 

Section 12 

12 (1) (b) is impossible to happen if the appointment   of the commissioner fulfilled  6 (1) (e) or (f) . it is either one or the other.  However if we assume that one was eligible  to be a commissioner  and gets appointed and then a family member got an interest in the sector , what is the commissioner supposed to do to sustain clause 6 (1) e or f?   these two sections need a  serious rethink to polish it .the intent is good however

cheers 

Muriuki Mureithi 

The happiest of people don't necessarily 
HAVE the best of everything; 
They just MAKE the best of everything

From: kictanet-bounces+mureithi=summitstrategies.co.ke at lists.kictanet.or.ke [mailto:kictanet-bounces+mureithi=summitstrategies.co.ke at lists.kictanet.or.ke] On Behalf Of Catherine Adeya
Sent: 18 February 2011 05:10
To: mureithi at summitstrategies.co.ke
Cc: KICTAnet ICT Policy Discussions
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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