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

Mon Aug 11 12:41:11 EAT 2014

@Walu

Attached is a copy of the judgement. The public university dons question is
addressed at paragraphs 41-50 of the ruling. As per tradition, courts may
not necessarily pronounce all issues in "plain language". Should such
challenges be encountered, it is advisable to befriend a competent legal
practitioner.

Kamotho

On Sat, Aug 9, 2014 at 6:17 PM, Walubengo J <jwalu at yahoo.com> wrote:

> @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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