<div dir="ltr"><div><div>@Walu<br><br></div>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.<br>
<br></div>Kamotho<br></div><div class="gmail_extra"><br><br><div class="gmail_quote">On Sat, Aug 9, 2014 at 6:17 PM, Walubengo J <span dir="ltr"><<a href="mailto:jwalu@yahoo.com" target="_blank">jwalu@yahoo.com</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">@Kamotho,<br>
<br>
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.<br>
<br>
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 :-)<br>
<br>
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).<br>
<br>
regds.<br>
<br>
walu.<br>
--------------------------------------------<br>
<div class="">On Sat, 8/9/14, Kamotho Njenga <<a href="mailto:kamothonjenga@gmail.com">kamothonjenga@gmail.com</a>> wrote:<br>
<br>
Subject: Re: [kictanet] ICT Authority Board Appointments Quashed by the High Court<br>
To: "Walubengo J" <<a href="mailto:jwalu@yahoo.com">jwalu@yahoo.com</a>><br>
</div> Cc: "KICTAnet ICT Policy Discussions" <<a href="mailto:kictanet@lists.kictanet.or.ke">kictanet@lists.kictanet.or.ke</a>><br>
Date: Saturday, August 9, 2014, 1:30 PM<br>
<div class="HOEnZb"><div class="h5"><br>
@Walu,<br>
I am entirely in agreement that the<br>
intellectual capital residing within academia is<br>
astronomical and any policy that expressly forbids academics<br>
from disbursing their knowledge treasures to Public Boards<br>
is frail in logic. As a matter of full disclosure and as you<br>
are aware, I also spend some time in lecture halls on<br>
account of what I believe to be a high calling. So, it was<br>
obviously not very convenient for me to advance the<br>
"ant-lecturer" line of argument. But once you<br>
choose to walk through the corridors of justice, there is no<br>
option but to stick to the straight and narrow legal path.<br>
All contested matters of law however trivial they appear<br>
must be laid bare before the court. Moreover when it became<br>
apparent that the decision making authority was deliberately<br>
contemptuous, we had to pursue the strict compliance<br>
doctrine. <br>
<br>
<br>
ICTAK's petition was<br>
anchored on multiple grounds. The ground on the appointment<br>
of Public University Dons was like a ribbon on the package.<br>
It stemmed from the fact that the Legal Notice No. 183 of<br>
2013 out-rightly forbid the inclusion of public officers in<br>
the board. Our contention was that since public universities<br>
are largely funded through public funds, lecturers can be<br>
deemed to fall under the public officers category. Upon<br>
rigorous interrogation, the court was not convinced by this<br>
argument and therefore this ground was strikingly shattered<br>
by the court. Thus as far as the ruling goes, no one should<br>
deny Walu an opportunity to sit on the next ICTA Board under<br>
the pretext that he is a "public officer".<br>
<br>
<br>
But why should the cabinet secretary<br>
be precluded from appointing public officers to his list?<br>
Isn't this discriminatory? These questions can be best<br>
answered by analyzing the composition and context within<br>
which boards operate. For instance, when completely<br>
structured, ICTA Board should consist of the following:<br>
<br>
-A chairman (appointed by the President)<br>
-PSs 1. ICT 2. Treasury 3. Lands and<br>
Housing<br>
-CEO (The first CEO to be<br>
hired competitively by the CS, the successors to be hired by<br>
the Board)<br>
-Not more than six other<br>
persons not being public officers<br>
<br>
<br>
The global trend in governance is<br>
that of public-private stewardship. Thus, if the CS was<br>
allowed to nominate the six other persons from the public<br>
service, the weight of the board would heavily tilt towards<br>
the executive side and questions of independence would<br>
naturally arise. Public-private combination also helps<br>
resolve the potential challenge of ideological<br>
inbreeding.<br>
<br>
<br>
Over the<br>
years, we advanced the logic to have the various public<br>
agencies within the ICT sector converged. When the executive<br>
order on the same was finally signed by the President, we<br>
anticipated a drastically bright future for the Kenyan ICT<br>
sector. At the same time, we recognized that there are a<br>
range of issues that require harmonization in the course of<br>
time. On this basis we have variously pleaded with the<br>
ministry to convene a multi-stakeholder forum so that the<br>
ICT community can ventilate their concerns and make<br>
contribution to policy. This to no avail. In good faith, we<br>
have also invited the ministry to useful events where<br>
business relevant to them is transacted but they have failed<br>
to show up. In the true African spirit, we have<br>
optimistically hoped that they will reciprocate our multiple<br>
invitations, at least with a single invite even to their<br>
lowest profile event, only to harshly realize that "our<br>
hopes are not valid".<br>
<br>
<br>
All along, we have held a strong desire to<br>
support the Kenyan ICT excellence dream. However, without<br>
fear of contradiction, I regrettably submit that the modus<br>
operandi at the ICT ministry has tragically deflated the ICT<br>
momentum and enthusiasm that prior leadership strove to<br>
gather. Never has it been so difficult to offer a helping<br>
hand at the ministry! I nostalgically miss the times when<br>
Hon Rege, Hon Mutahi Kagwe, Hon Poghisio, Dr. Ndemo were at<br>
the helm. Those are the days when the PS or Minister would<br>
stay late into the evening consulting stakeholders and ooze<br>
visions of wisdom for the sector the following dawn. Court<br>
battles were alien to the sector.<br>
<br>
<br>
My personal holding is that courts should<br>
only be applicable as a last resort. Litigation procedures<br>
and outcomes in their nature are very adversarial. There are<br>
majorly two possible outcomes in a court process; a fabulous<br>
winner and bitter loser. Engagement and Consultation on its<br>
part produces an endless chain of winners. But if the<br>
Kenyan ICT sector can only be successfully steered through<br>
chamber summons, sworn affidavits and court decrees; then my<br>
heart bleeds. <br>
<br>
<br>
Kamotho Njenga<br>
<br>
<br>
<br>
On Fri,<br>
Aug 8, 2014 at 5:35 PM, Walubengo J <<a href="mailto:jwalu@yahoo.com">jwalu@yahoo.com</a>><br>
wrote:<br>
<br>
<br>
<br>
<br>
<br>
@Kamotho,<br>
<br>
<br>
<br>
am yet to read the full ruling. But if i recall well the key<br>
contention/plea was that the appointment of Public<br>
University staff into the various ICT Boards to be be found<br>
illegal.<br>
<br>
<br>
<br>
it appears the judges are in agreement. However, considering<br>
the amount of intelkectual talent within public universities<br>
- dont you think it is discriminatory that that group of<br>
staff are barred from contributing to national development<br>
at a Board level?<br>
<br>
<br>
<br>
<br>
Is it time to review this clause or it does serve the<br>
purpose?<br>
<br>
<br>
<br>
walu.<br>
<br>
<br>
<br>
<br>
<br>
------------------------------<br>
<br>
On Fri, Aug 8, 2014 1:19 PM AST<br>
(Arabian) Kamotho Njenga via kictanet wrote:<br>
<br>
<br>
<br>
>The illegal appointments made by the ICT Cabinet<br>
Secretary, Dr Fred<br>
<br>
>Matiang'i have been quashed by the High Court.<br>
Details on the background<br>
<br>
>and the orders of the court are available at<br>
<br>
><a href="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" target="_blank">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</a><br>
<br>
<br>
><br>
<br>
>For the avoidance of doubt, partial implications of the<br>
certiorari orders<br>
<br>
>are that the impugned board was illegal *ab<br>
initio*. So it is like the<br>
<br>
>board never existed. Reports<br>
attributable to the CS are that he plans to<br>
<br>
>appeal the decision. He has an inherent right to do so.<br>
What must be clear<br>
<br>
>is that the quash orders are in full force w.e.f<br>
yesterday and the board<br>
<br>
>cannot purport to transact or to be seen to do so.<br>
<br>
><br>
<br>
>This is a crisis the Cabinet secretary has precipitated<br>
himself because of<br>
<br>
>a trademark unilateralism approach and failure to<br>
engage. Any attempt by<br>
<br>
>any person whatsoever to overlook the prescriptions of<br>
the court's decree<br>
<br>
>has obvious sanctions.<br>
<br>
><br>
<br>
>Kamotho<br>
<br>
<br>
<br>
<br>
<br>
</div></div></blockquote></div><br></div>