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

Sat Feb 19 09:33:37 EAT 2011

Listers, 

Depending on where you are...it is a beautiful sunny day...wintry and cold or 
rainy and muddy....enjoy it anyway. Please feel free to continue the debates 
this weekend, especially on this Day 5-6 topic.

Muriuki, you have certainly read this Bill and thought through it. Thank you for 
your useful contributions. It will be interesting to see what other Listers 
think about your suggestion especially that of allowing an interested party 
access to the Minutes of the Commission. It makes the word 'independence' make 
sense. I do agree there may need to be a stipulated minimum number of meetings.

Have a great weekend.

Nyaki

________________________________
From: muriuki mureithi <mureithi at summitstrategies.co.ke>
To: Catherine Adeya <elizaslider at yahoo.com>
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Sent: Fri, February 18, 2011 6:19:27 PM
Subject: RE: [kictanet] Day 5-6: Terms of Office, Removal from Office, 
Remuneration and Conflict of Interest

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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