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

Sun Aug 10 10:58:59 EAT 2014

Walu,
I think that you have over generalized your views on university by using a traditional medieval university model of freedom of expression to justify ‘independence of university dons.’ The modern society needs universities to train their government, political, religious, and security and other specialized servants. This is the main objective of governments, religious organizations and other parties that sponsor universities.
The views of sponsors generally affect the ‘independence’ of the staff and students. Indeed it is rare to find a public university that does not specify promotion of national values in its statutes without specifying these values and drawing a line between these values and those of the government of the day. Similarly, it is not possible to get a religious university (Catholic, Muslim, Presbyterian, etc) which does not seek to promote unique values of the religious sect.
In Kenya, we have gone further to guarantee freedom of expression to all citizens in Section 33 of the Constitution (http://www.kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=Const2010). However, it is wrong to assume that such guarantees ensure that individuals appointed to Boards like that of CTA, who inevitably must deal with organizational and national politics, make independent decisions.
Prof. James Kulubi

--------------------------------------------
On Sat, 9/8/14, Walubengo J via kictanet <kictanet at lists.kictanet.or.ke> wrote:

 Subject: Re: [kictanet] ICT Authority Board Appointments Quashed by the High	Court
 To: jkulubi at yahoo.co.uk
 Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
 Date: Saturday, 9 August, 2014, 16:17

 @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

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