[kictanet] ICT Authority Board Appointments Quashed by the High Court

[Kamotho Njenga]

@Walu,
I am entirely in agreement that the intellectual capital residing within
academia is astronomical and any policy that expressly forbids academics
from disbursing their knowledge treasures to Public Boards is frail in
logic. As a matter of full disclosure and as you are aware, I also spend
some time in lecture halls on account of what I believe to be a high
calling. So, it was obviously not very convenient for me to advance the
"ant-lecturer" line of argument. But once you choose to walk through the
corridors of justice, there is no option but to stick to the straight and
narrow legal path. All contested matters of law however trivial they appear
must be laid bare before the court. Moreover when it became apparent that
the decision making authority was deliberately contemptuous, we had to
pursue the strict compliance doctrine.

ICTAK's petition was anchored on multiple grounds. The ground on the
appointment of Public University Dons was like a ribbon on the package. It
stemmed from the fact that the Legal Notice No. 183 of 2013 out-rightly
forbid the inclusion of public officers in the board. Our contention was
that since public universities are largely funded through public funds,
lecturers can be deemed to fall under the public officers category. Upon
rigorous interrogation, the court was not convinced by this argument and
therefore this ground was strikingly shattered by the court. Thus as far as
the ruling goes, no one should deny Walu an opportunity to sit on the next
ICTA Board under the pretext that he is a "public officer".

But why should the cabinet secretary be precluded from appointing public
officers to his list? Isn't this discriminatory? These questions can be
best answered by analyzing the composition and context within which boards
operate. For instance, when completely structured, ICTA Board should
consist of the following:
-A chairman (appointed by the President)
-PSs 1. ICT 2. Treasury 3. Lands and Housing
-CEO (The first CEO to be hired competitively by the CS, the successors to
be hired by the Board)
-Not more than six other persons not being public officers

The global trend in governance is that of public-private stewardship. Thus,
if the CS was allowed to nominate the six other persons from the public
service, the weight of the board would heavily tilt towards the executive
side and questions of independence would naturally arise. Public-private
combination also helps resolve the potential challenge of ideological
inbreeding.

Over the years, we advanced the logic to have the various public agencies
within the ICT sector converged. When the executive order on the same was
finally signed by the President, we anticipated a drastically bright future
for the Kenyan ICT sector. At the same time, we recognized that there are a
range of issues that require harmonization in the course of time. On this
basis we have variously pleaded with the ministry to convene a
multi-stakeholder forum so that the ICT community can ventilate their
concerns and make contribution to policy. This to no avail. In good faith,
we have also invited the ministry to useful events where business relevant
to them is transacted but they have failed to show up. In the true African
spirit, we have optimistically hoped that they will reciprocate our
multiple invitations, at least with a single invite even to their lowest
profile event, only to harshly realize that "our hopes are not valid".

All along, we have held a strong desire to support the Kenyan ICT
excellence dream. However, without fear of contradiction, I regrettably
submit that the modus operandi at the ICT ministry has tragically deflated
the ICT momentum and enthusiasm that prior leadership strove to gather.
Never has it been so difficult to offer a helping hand at the ministry! I
nostalgically miss the times when Hon Rege, Hon Mutahi Kagwe, Hon Poghisio,
Dr. Ndemo were at the helm. Those are the days when the PS or Minister
would stay late into the evening consulting stakeholders and ooze visions
of wisdom for the sector the following dawn. Court battles were alien to
the sector.

My personal holding is that courts should only be applicable as a last
resort. Litigation procedures and outcomes in their nature are very
adversarial. There are majorly two possible outcomes in a court process; a
fabulous winner and bitter loser. Engagement and Consultation on its part
produces an endless chain of winners. But if  the Kenyan ICT sector can
only be successfully steered through chamber summons, sworn affidavits and
court decrees; then my heart bleeds.

Kamotho Njenga



On Fri, Aug 8, 2014 at 5:35 PM, Walubengo J <jwalu at yahoo.com> wrote:

>
>
> @Kamotho,
>
> am yet to read the full ruling. But if i recall well the key
> contention/plea was that the appointment of Public University staff into
> the various ICT Boards to be be found illegal.
>
> it appears the judges are in agreement. However, considering the amount of
> intelkectual talent within public universities - dont you think it is
> discriminatory that that group of staff are barred from contributing to
> national development at a Board level?
>
> Is it time to review this clause or it does serve the purpose?
>
> walu.
>
>
> ------------------------------
> On Fri, Aug 8, 2014 1:19 PM AST (Arabian) Kamotho Njenga via kictanet
> wrote:
>
> >The illegal appointments made by the ICT Cabinet Secretary, Dr Fred
> >Matiang'i have been quashed by the High Court. Details on the background
> >and the orders of the court are available at
> >
> http://www.ictak.or.ke/resources/news-and-events/235-statement-on-the-high-court-ruling-regarding-appointments-to-the-board-of-the-kenya-ict-authority-board
> >
> >For the avoidance of doubt, partial implications of the certiorari orders
> >are that the impugned board was illegal *ab initio*. So it is like the
> >board never existed. Reports attributable to the CS are that he plans to
> >appeal the decision. He has an inherent right to do so. What must be clear
> >is that the quash orders are in full force w.e.f yesterday and the board
> >cannot purport to transact or to be seen to do so.
> >
> >This is a crisis the Cabinet secretary has precipitated himself because of
> >a trademark unilateralism approach and failure to engage. Any attempt by
> >any person whatsoever to overlook the prescriptions of the court's decree
> >has obvious sanctions.
> >
> >Kamotho
>
>
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