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

[Catherine Adeya]

Day 6 continues for a few more hours.......though you can continue the 
discussion during the week but under this header.

SUMMARY SO FAR:



1. Grace Githaiga gave a very lengthy contribution on various sections, in 
Section 7 (6) she said it is not clear whether Commissioners will be in full 
employment but added that there has to be some security of tenure to guard 
against political influence. In Section 8(b) and (e) –on which involve gross 
misconduct and incompetence – she suggests it should be dealt with through a 2/3 
vote by the Commissioners. And in Section 10 on Remuneration she suggests it 
should not be left solely to the Minister (aka Cabinet Secretary) but to be 
pegged to existing Commissions.  



2. Muriuki’s concern with Section 11 is the need for a clause to enable 
interested parties to access Minutes of Commission meetings. However, Matunda 
wonders whether  this be covered under "access to information"  'principle' in 
the new constitution. Muriuki further emphasized that Section 11(3) should be 
clear that a quorum should constitute at least 5 Commissioners and meetings must 
be held on Kenyan soil. In addition, the Bill should be clear on the minimum 
number of meetings per annum.

3. Muriuki  also commented on Section 12 (1) (b) basically arguing that a 
Commissioner does not have control over what his/her family members do. He 
further emphasized that it is contradictory especially considering Section 6(1) 
where are person cannot be a Commissioner if:
e) a family member has a direct or indirect financial interest in the sector;
f) business partner or associate holds an office in or with, or is employed by, 
any person or bosy, whether corporate or unincorporated, which has an interest 
contemplated in paragraph

  

THE ISSUES BEING DISCUSSED:

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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