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

Mon Aug 11 12:17:41 EAT 2014

@Prof Kulubi,

I agree - at the end of the day, nobody is entirely independent and has to weigh their decisions against multiple variables.  However, my point is that academics by training tend to interrogate the issues more critically and objectively and are likely to vote against the grain once convinced on a given matter of principle. 

An extreme case in point is Dr. Ndemo who as PS actually voted against himself (the Government thinking) at the ITU/WCIT 2012 conference in Dubai :-) Check out the story @

http://www.nation.co.ke/oped/Opinion/When-Kenya-failed-to-sign-telecom-treaty/-/440808/1647788/-/15saay3z/-/index.html

walu.
--------------------------------------------
On Sun, 8/10/14, James Kulubi <jkulubi at yahoo.co.uk> wrote:

 Subject: Re: [kictanet] ICT Authority Board Appointments Quashed by the High	Court
 To: "Walubengo J" <jwalu at yahoo.com>, "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
 Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
 Date: Sunday, August 10, 2014, 10:58 AM

 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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