[kictanet] ICT Authority Board Appointments Quashed by the High Court
Consumers Federation of Kenya (Cofek)
hotline at cofek.co.ke
Tue Aug 12 23:25:02 EAT 2014
Prof. Kulubi,
Your reading of Dunga, J ruling is perfect save for the part you suggest amendments to ICTA Act. That would still be futile unless Art. 260 CoK is amended first.
Again, there is something lawyers call "spirit of law" as regards public officers. The spirit envisaged is that you ordinarily can't stand up to the appointing authority. The law should have stated "independent directors" like the case of CA. Again, even if you didn't earn a cent and you were to be away for more than 3 years, UoN is established as a public not private institution. Best of you resign and get appointed!
Finally, and on a lighter note, must ICTA be run as if it is the ICT corner if UoN SCR (Senior Common Room). Would it have been good to blend with say doctors, bankers, security etc "experts"? Point being ICT is not about its mentors/seers only but it's a way of life for everyone including the Pope and most wanted criminals.
Kind regards,
Stephen Mutoro
www.cofek.co.ke
-------- Original message --------
From: James Kulubi via kictanet <kictanet at lists.kictanet.or.ke>
Date:12/08/2014 8:34 PM (GMT+03:00)
To: "The Consumers Federation of Kenya (Cofek)" <hotline at cofek.co.ke>
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Subject: [***SPAM*** Score/Req: 05.40/5.0] Re: [kictanet] ICT Authority Board Appointments Quashed by the
High Court
Walu,
I will quote extensively from the ruling to answer your question on why the dons cannot be appointed to the Board of the Authority.
1. Section 7 of the ruling gives the statement of the deponent as follows:
"According to the deponent, the actions of the 1st Respondent (CS) reek of irrationality; abuse of power or impunity; illegality; are tainted with bias and are in flagrant disregard for the rule of law for the reasons that the appointments are ultra vires the provisions of Section 6(2)(e) of the Order in that the 1st and the 4th interested parties are public officers being in employment as lecturers at the University of Nairobi which is a Public Institution, by dint of Article 260 of the Constitution hence ought not to have been appointed as members of the board."
2. Section 6(2)(e) of the Order which provides that the Board of the Authority shall consist of “not more than six persons, not being public officers, appointed by the Cabinet Secretary, by virtue of their specialist knowledge and distinguished service and experience of at last seven years in matters of information and communications technologies, e-Government, e-Commerce, law, finance, or human resources management.”
3. Section 260 of the constitution gives the interpretation of public office as:
“public office” means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament;
4. The judge in his ruling states (Section 42 of the judgement) states:
" In my view where a statute donates powers to an authority, the authority ought to ensure that the powers that it exercises are within the four corners of the statute and ought not to extend its powers outside the statute under which it purports to exercise its authority."
The judge is simply saying that the Legal Notice gave the CS powers to appoint “not more than six persons, not being public officers” and further the State Corporation Act under which the Order was made requires that such appointments are staggered (to ensure continuity in the business of the Authority).
5. Given this ruling, one could say that the only loophole to appoint the two dons is to use the argument of the 2nd respondent that Nairobi university makes money from other sources and therefore there is doubt that the dons were drawing salary from the Consolidated Fund or directly out of money provided by Parliament. In this regard, the judge states:
"Based on the material before me I am not 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."
I know that this is where you appear to be convinced that the dons could be re-appointed. The problem here is that the burden of proof will lie with dons or applicants for the position of Board members. In my view each don seeking to serve on the Board of the ICT Authority must under the prevailing Order prove that he or she in on an unpaid leave (also called leave of absence) from the public university for a period longer than 3 years; or that all his remuneration will come from a research project/parallel students’ fees/consultancy for the whole of the three years that he or she is serving on the Board.
This is not a common practice since most universities have ceilings on the length of unpaid leaves and the accounts of fees from parallel and regular students are often mixed. I therefore believe that the easier solution is to either keep the dons away from the Board of the ICT Authority for the time being while awaiting a substantive Bill to establish the Authority to be drafted and tabled in Parliament, or alternatively to review the Order establishing the Authority and gazette it afresh.
On a lighter note, I am not interested in serving on the Board of this Authority.
Best Regards
Prof. James Kulubi
--------------------------------------------
On Tue, 12/8/14, Walubengo J <jwalu at yahoo.com> wrote:
Subject: Re: [kictanet] ICT Authority Board Appointments Quashed by the High Court
To: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>, "James Kulubi" <jkulubi at yahoo.co.uk>
Cc: "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
Date: Tuesday, 12 August, 2014, 9:42
Prof.
I was with you all along until your final paragraph which in
part says:
"...My personal opinion is that the situation can be
corrected by either appointing another Board while excluding
the two dons..."
I thought the judge had just ruled that dons can be on this
board? This can be the original two dons, or new ones like
you :-) What I dont understand is why the original
ones must be excluded as per your opinion. Why should this
be?
walu.
--------------------------------------------
On Mon, 8/11/14, 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: Monday, August 11, 2014, 11:04 PM
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
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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.
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