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

Mon Aug 11 15:05:35 EAT 2014

Thnx Kamotho.  Suprised it took the judge many paragraphs to conclude what I have always known :-) 

And I quote the judge in part on article 50 of the judgement.

--------<<<<
50......Based on the material before me I am NOT (emphasis by me) convinced that the mere fact that the 1st and 4th interested parties may be permanent and pensionable employees of the University of Nairobi necessarily qualify them to be public officers as defined under Article 260 of the Constitution.
--------<<<<<

Cool!

walu.
--------------------------------------------
On Mon, 8/11/14, 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: Monday, August 11, 2014, 12:41 PM

 @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