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

Mon Aug 11 23:04:16 EAT 2014

After reading the ruling, it is clear that the problem with the appointment of dons from the University of Nairobi (Interested Party One and four) has all to do with the drafting of Legal Notice No. 183 which established the ICT Authority.
Drawing from my experience as the Communication Secretary (CEO of the National Communications Secretariat) for 7 years during which period I participated in the drafting Legal Notice establishing the ICT Board amongst others, I would first shed light on the processes which such legal notices follow. 
1.	The parent ministry would go through the policy formulation process including stakeholder consultation and approve the policy that a new state corporation was necessary and also list its functions. In this particular case, this step was not necessary since the policy was gazetted in the Executive Order No. 1 on the reorganization of Government.
2.	Second, the Ministry would get a body or individuals with necessary sector and legal expertise to draft the Legal Notice which would be reviewed at ministerial level before being forwarded to the Permanent (now Principal)  Secretary. For the ICT sector, the National Communication Secretariat would normally perform this function as provided for in Section 102 of the Kenya Communications Act. Not only did it have technical experts, it had a legal expert and could use consultants where necessary. The Permanent (now Principal) Secretary would, after seeking  approval from the Minister (CS), forward the Legal notice the Attorney General for review.
3.	The Attorney General would read the Legal Notice and highlight any areas which fail to comply with the Law (Constitution, Acts of Parliament and Subsidiary Legislation) and recommend correction or redrafting.  If satisfied, the Attorney General would forward two copies of the Legal Notice to the Permanent Secretary with a cover letter indicating that the President may sign if he agrees.
4.	The President would sign the Legal Notice (if he agrees) and a copy would be forwarded to the Principal Secretary who would forward it again to the Attorney General who would now give it the Legal Notice number (in this case Legal Notice No. 183) and forward it to the Government Printer for publication.
Away from the government bureaucracy, what happened in this case is that the drafters, as highlighted in the court proceeding, were content with having the CS of Treasury and the CS of the Parent Ministry as the only two central and county members of  the Board of the Authority. By doing so, they also  complied with the provisions of the State Corporation Act which provides for a maximum of three.  Indeed, I fully agree with them on this matter. But they used the words ‘public servants’ when drafting. Unfortunately and most likely unknown to the drafters, the Constitution of Kenya 2010 had defined a public servant in such a manner that it goes beyond central and county government employees. So we have the unfortunate situation where dons from public universities can sit on the Boards of most State Corporation and even Councils of the Public Universities (which as also state corporations) but they cannot sit on the Board of the ICT Authority.
My personal opinion is that the situation can be corrected by either appointing another Board while excluding the two dons  and also staggering the appointments or alternatively withdrawing the legal notice and gazetting another one which fulfils the intention of the drafters and provides for staggered terms of office.
Let me have your views.
Prof. James A. Kulubi 

--------------------------------------------
On Mon, 11/8/14, 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: Monday, 11 August, 2014, 15:05

 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

 _______________________________________________
 kictanet mailing list
 kictanet at lists.kictanet.or.ke
 https://lists.kictanet.or.ke/mailman/listinfo/kictanet

 Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jkulubi%40yahoo.co.uk

 The Kenya ICT Action Network (KICTANet) is a
 multi-stakeholder platform for people and institutions
 interested and involved in ICT policy and regulation. The
 network aims to act as a catalyst for reform in the ICT
 sector in support of the national aim of ICT enabled growth
 and development.

 KICTANetiquette : Adhere to the same standards of acceptable
 behaviors online that you follow in real life: respect
 people's times and bandwidth, share knowledge, don't flame
 or abuse or personalize, respect privacy, do not spam, do
 not market your wares or qualifications.