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

Sat Aug 9 18:17:59 EAT 2014

@Kamotho,

Thanx for the detailed response. I wish you could point us to the full judgement, I am still keen to see how the judge managed to argue out my gut feeling about public university dons i.e. being able to find that they are indeed not part of the envisioned "public" servants as specified in the clause barring public servants sitting on such boards.

As for the change of modus operandi at the ministry, I do agree it has happened and have blogged and complained about it - without losing my pay (@ Ngigi  :-)

But I am not sure all is lost.  Perhaps there are just multiple routes to the same objective and we may just need some consensus and understanding on both sides (ministry/industry).

regds.

walu.
--------------------------------------------
On Sat, 8/9/14, Kamotho Njenga <kamothonjenga at gmail.com> wrote:

 Subject: Re: [kictanet] ICT Authority Board Appointments Quashed by the High Court
 To: "Walubengo J" <jwalu at yahoo.com>
 Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
 Date: Saturday, August 9, 2014, 1:30 PM

 @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