[kictanet] Row simmers over order on new Information, Communication and Technology leadership

Fri Sep 6 09:12:51 EAT 2013

________________________________
 Ali Hussein <ali at hussein.me.ke>wrote,
@John, that's just it...it's not illegal..it may be challenged in court 
but it seems that the executive is acting within the confines of the 
law. 

~~~~~~~

The unilateral appointment would indeed be "legal" as it is enshrined in the Legal notice. However, the clever lawyers would not be challenging the appointment (since it would be legal), but they would be challenging whether it is constitutional to "legalize" such an action of appointing without inviting other Kenyans to apply...(discrimination)

Remember that the constitution is the supreme law and any other law(Act, Legal Notice, Regulation, etc) that is contradictory to it is null and void.  Am not a lawyer but I think that is where the court battle would be about. In the likely event that the courts find  that the legal notice is in violation of the constitution, then by extension the appointment becomes null and void.

Problem is that this would take time and meanwhile whoever is appointed is likely to have his/her hands tied up and cannot transact ICT Authority business. Thats why I said, why bother with the risks? Just advertise the job, go through the motions and safely arrive at the same destination. 

We did this successfully for our Cabinet Sec and PS, I still dont understand why it should become difficult for a  CEO  :-)

walu.

________________________________
 From: Ali Hussein <ali at hussein.me.ke>
To: jwalu at yahoo.com 
Cc: "kictanet at lists.kictanet.or.ke" <kictanet at lists.kictanet.or.ke> 
Sent: Friday, September 6, 2013 6:27 AM
Subject: Re: [kictanet] Row simmers over order on new Information,	Communication and Technology leadership

@Kivuva

You are quite right.

@Walu, I believe the correct phrase is 'The end justifies the means'. :)

@John, that's just it...it's not illegal..it may be challenged in court but it seems that the executive is acting within the confines of the law. 

Ali Hussein
CEO | 3mice interactive media Ltd
Principal | Telemedia Africa Ltd

+254 713 601113/ 0770 906375

"The future belongs to him who knows how to wait." - Russian Proverb
Sent from my iPad

On Sep 5, 2013, at 10:49 PM, Kivuva <Kivuva at transworldafrica.com> wrote:

Because we know who is being targeted for this position, and we know
>his attributes and leadership qualities, and we acknowledge this is
>just a onetime appointment, why don't we discuss the merits and
>de-merits of Dr. Victor Kyalo?
>
>I feel there is something members want to say but are being held back
>by diplomacy.
>
>Lets remember as it has been stated here previously, anybody holding
>this public office will still have to pass the test of LEADERSHIP and
>INTEGRITY as envisioned in the constitution
>
>On 05/09/2013, Ali Hussein <ali at hussein.me.ke> wrote:
>
>Listers
>>
>
>>
>Sometimes expediency requires that there is continuity and institutional
>>
>memory carry over to allow for a smooth transition.
>>
>
>>
>In this particular case the Ag.CEO provides an excellent reason for this. He
>>
>has the expertise, experience, qualifications and the political  savvy ness
>>
>to navigate this new monster called the ICTA.
>>
>
>>
>The CS may need to look at constituting a new board though.
>>
>
>>
>I say let the new team move with expediency and judge it by the results.
>>
>
>>
>Regards
>>
>
>>
>Ali Hussein
>>
>CEO | 3mice interactive media Ltd
>>
>Principal | Telemedia Africa Ltd
>>
>
>>
>+254 713 601113/ 0770 906375
>>
>
>>
>"The future belongs to him who knows how to wait." - Russian Proverb
>>
>
>>
>Sent from my iPad
>>
>
>>
>On Sep 5, 2013, at 2:34 PM, "Judy M. Muli" <judym.muli at gmail.com> wrote:
>>
>
>>
>Listers,
>>>
>What happened to the hookup, to discuss some of these issues and forge a
>>>
>united front.
>>>
>
>>>
>Judy
>>>
>
>>>
>
>>>
>
>>>
>On Thu, Sep 5, 2013 at 1:40 PM, Grace Githaiga <ggithaiga at hotmail.com>
>>>
>wrote:
>>>
>Thanks Walu.
>>>>
>
>>>>
>Great analysis. You are right about the need to avoid unnecessary
>>>>
>litigation (read unnecessary negative publicity). Cofek already posted
>>>>
>the article on its site and you never know if it is considering following
>>>>
>up on the matter.
>>>>
>http://www.cofek.co.ke/index.php/14-news/253-tired-talk-of-presidential-executive-orders-and-unacceptable-plain-illegality-of-single-sourced-ict-authority-boss
>>>>
>.
>>>>
>
>>>>
>I agree with you on the need to advertise this job and still get the
>>>>
>"right man/woman" for it.  The CS should not allow the matter to be
>>>>
>determined by the courts.
>>>>
>
>>>>
>May I suggest that you consider this topic for your Nation Blog next
>>>>
>week? This 2010 Constitution. Argh!
>>>>
>
>>>>
>Rgds
>>>>
>GG
>>>>
>
>>>>
>Date: Thu, 5 Sep 2013 03:12:47 -0700
>>>>
>From: jwalu at yahoo.com
>>>>
>
>>>>
>Subject: Re: [kictanet] Row simmers over order on new Information,
>>>>
>Communication and Technology leadership
>>>>
>To: ggithaiga at hotmail.com
>>>>
>CC: kictanet at lists.kictanet.or.ke
>>>>
>
>>>>
>@GG
>>>>
>
>>>>
>I see the comparison - and specifically the fact that the previous CEO of
>>>>
>the ICT Board was expected to be unilaterally selected by the Minister.
>>>>
>However, that was then(2006/7). Fast-forward to today (2013) - with the
>>>>
>notable development of the new constitution (2010).
>>>>
>
>>>>
>This thing (Constitution 2010) changed so much - even the President today
>>>>
>cannot do stuff his predecessors used to do over a game of golf/beer/etc.
>>>>
>And so it would be the case for the Kenya ICT Authority - one cannot just
>>>>
>borrow a previous clause and paste it into a new, bigger and different
>>>>
>institution.  ICT Authority (2013) is miles apart from ICT board (2007)
>>>>
>in form, nature, scope and mandate.
>>>>
>
>>>>
>For example, ICT Board(2007) was an institution with an
>>>>
>"administratively" limited ministerial scope -that is why other
>>>>
>Ministries could afford to ignore them. Today the ICT Authority is an
>>>>
>animal with sweeping powers that cut across Ministries and govt agencies.
>>>>
>The CEO appointment therefore requires and is indeed given a more
>>>>
>rigorous approach in the legal notice.
>>>>
>
>>>>
>What raised the storm is why the need to exempt the 1st CEO from this
>>>>
>rigorous approach? My unsolicited advise would be for the CS to ignore
>>>>
>the clause, advertise the job (open it  up for everyone) - and still get
>>>>
>(his?) the right man/woman for the job. After all, he has or can create
>>>>
>the required "magnanimity" (opposite of Tyranny :-)  of the numbers in
>>>>
>the Board.
>>>>
>
>>>>
>The other route is vulnerable to too much and unnecessary litigation that
>>>>
>may cripple the ICT Authority for years before it gets started. E.g
>>>>
>Someone can file a suit to determine whether the contentious clause goes
>>>>
>against the constitutional provision for non-discrimination. While the
>>>>
>suit is being determined ICT Authority will remain crippled/handicapped
>>>>
>for years.
>>>>
>
>>>>
>walu.
>>>>
>
>>>>
>From: Grace Githaiga <ggithaiga at hotmail.com>
>>>>
>To: jwalu at yahoo.com
>>>>
>Cc: "kictanet at lists.kictanet.or.ke" <kictanet at lists.kictanet.or.ke>
>>>>
>Sent: Wednesday, September 4, 2013 2:41 PM
>>>>
>Subject: Re: [kictanet] Row simmers over order on new Information,
>>>>
>Communication and Technology leadership
>>>>
>
>>>>
>@ Walu,
>>>>
>For comparison purposes, see legal notice legal Notice 26 of 2007
>>>>
>http://www.kenyalaw.org/klr/index.php?id=568 (STATE CORPORATION KENYA
>>>>
>INFORMATION TECHNOLOGY BOARD 2007)
>>>>
>
>>>>
>From: ggithaiga at hotmail.com
>>>>
>To: robertyawe at yahoo.co.uk
>>>>
>CC: kictanet at lists.kictanet.or.ke
>>>>
>Subject: RE: [kictanet] Row simmers over order on new Information,
>>>>
>Communication and Technology leadership
>>>>
>Date: Tue, 3 Sep 2013 09:13:46 +0000
>>>>
>
>>>>
>Thanks Loise for sharing the legal notice.
>>>>
>
>>>>
>@ Yawe you are right. That is the nature of the notice. You do not need
>>>>
>to be subjected to public scrutiny:) (On a light note, it is a pity since
>>>>
>I would be interested to know your inside manenos).
>>>>
>
>>>>
>@ Brian, Walu, and Alice
>>>>
>
>>>>
>I have just skimmed through the notice and in matters of the ICT
>>>>
>Authority appointments (both board and first CEO) it actually gives the
>>>>
>CS carte blanche. There may not be a row after all!  Maybe some mischief
>>>>
>at the drafting process of the notice which ensured that it ignored
>>>>
>article 10 of the constitution which  lays emphasis on consulting in
>>>>
>policy making processes. @ Kapiyo, @ Grace Bomu, what are your comments?
>>>>
>
>>>>
>Rgds
>>>>
>GG
>>>>
>
>>>>
>Date: Tue, 3 Sep 2013 09:58:31 +0100
>>>>
>From: robertyawe at yahoo.co.uk
>>>>
>Subject: Re: [kictanet] Row simmers over order on new Information,
>>>>
>Communication and Technology leadership
>>>>
>To: ggithaiga at hotmail.com
>>>>
>CC: kictanet at lists.kictanet.or.ke
>>>>
>
>>>>
>Hi,
>>>>
>
>>>>
>There goes my opportunity to be appointed without having to jump through
>>>>
>hoops that require me to answer questions from my questionable past.
>>>>
>
>>>>
>Regards
>>>>
>
>>>>
>
>>>>
>Robert Yawe
>>>>
>KAY System Technologies Ltd
>>>>
>Phoenix House, 6th Floor
>>>>
>P O Box 55806 Nairobi, 00200
>>>>
>Kenya
>>>>
>
>>>>
>
>>>>
>Tel: +254722511225, +254202010696
>>>>
>
>>>>
>From: Grace Githaiga <ggithaiga at hotmail.com>
>>>>
>To: robertyawe at yahoo.co.uk
>>>>
>Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
>>>>
>Sent: Monday, 2 September 2013, 15:02
>>>>
>Subject: [kictanet] Row simmers over order on new Information,
>>>>
>Communication and Technology leadership
>>>>
>
>>>>
>A row is simmering in the Ministry of Information, Communication and
>>>>
>Technology over a law that gives the Cabinet secretary power to make
>>>>
>unilateral appointment.
>>>>
>
>>>>
>Executive Order No. 2 of 2013 by President Uhuru Kenyatta on the
>>>>
>reorganisation of government that establishes the Information and
>>>>
>Communications Technology Authority ( ICTA) gives the ICT Cabinet
>>>>
>Secretary power to appoint the CEO of the authority without involving the
>>>>
>board.
>>>>
>
>>>>
>http://www.standardmedia.co.ke/?articleID=2000092541&story_title=row-simmers-over-order-on-new-icta-leadership
>>>>
>
>>>>
>_______________________________________________
>>>>
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>>>>
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>>>>
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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
>>>>
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>>>>
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>>>>
>_______________________________________________
>>>>
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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.
>>>>
>
>>>>
>
>>>>
>_______________________________________________
>>>>
>kictanet mailing list
>>>>
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>>>>
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>>>>
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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.
>>>
>
>>
>
>-- 
>______________________
>Mwendwa Kivuva
>twitter.com/lordmwesh
>kenya.or.ke | The Kenya we know
>
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