<html><head><meta http-equiv="Content-Type" content="text/html; charset=UTF-8"></head><body >Prof. Kulubi,<div><br><div>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. </div></div><div><br></div><div>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! </div><div><br></div><div>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. </div><div><br></div><div>Kind regards, </div><div><br></div><div>Stephen Mutoro </div><div>www.cofek.co.ke </div><br><br>-------- Original message --------<br>From: James Kulubi via kictanet <kictanet@lists.kictanet.or.ke> <br>Date:12/08/2014 8:34 PM (GMT+03:00) <br>To: "The Consumers Federation of Kenya (Cofek)" <hotline@cofek.co.ke> <br>Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> <br>Subject: [***SPAM*** Score/Req: 05.40/5.0] Re: [kictanet] ICT Authority Board Appointments Quashed by the
High Court <br><br>Walu,<br>I will quote extensively from the ruling to answer your question on why the dons cannot be appointed to the Board of the Authority.<br>1. Section 7 of the ruling gives the statement of the deponent as follows:<br><br>"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."<br>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.”<br><br>3. Section 260 of the constitution gives the interpretation of public office as:<br><br>“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;<br><br>4. The judge in his ruling states (Section 42 of the judgement) states:<br><br>" 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."<br><br>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).<br><br>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: <br><br>"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."<br><br>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.<br>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.<br>On a lighter note, I am not interested in serving on the Board of this Authority.<br>Best Regards<br>Prof. James Kulubi<br><br>--------------------------------------------<br>On Tue, 12/8/14, Walubengo J <jwalu@yahoo.com> wrote:<br><br> Subject: Re: [kictanet] ICT Authority Board Appointments Quashed by the High Court<br> To: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke>, "James Kulubi" <jkulubi@yahoo.co.uk><br> Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke><br> Date: Tuesday, 12 August, 2014, 9:42<br> <br> Prof.<br> <br> I was with you all along until your final paragraph which in<br> part says:<br> "...My personal opinion is that the situation can be<br> corrected by either appointing another Board while excluding<br> the two dons..."<br> <br> I thought the judge had just ruled that dons can be on this<br> board? This can be the original two dons, or new ones like<br> you :-) What I dont understand is why the original<br> ones must be excluded as per your opinion. Why should this<br> be?<br> <br> walu.<br> <br> --------------------------------------------<br> On Mon, 8/11/14, James Kulubi <jkulubi@yahoo.co.uk><br> wrote:<br> <br> Subject: Re: [kictanet] ICT Authority Board Appointments<br> Quashed by the High Court<br> To: "Walubengo J" <jwalu@yahoo.com>,<br> "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke><br> Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke><br> Date: Monday, August 11, 2014, 11:04 PM<br> <br> After reading the ruling, it is clear<br> that the problem with the appointment of dons from the<br> University of Nairobi (Interested Party One and four) has<br> all to do with the drafting of Legal Notice No. 183 which<br> established the ICT Authority.<br> Drawing from my experience as the Communication Secretary<br> (CEO of the National Communications Secretariat) for 7<br> years<br> during which period I participated in the drafting Legal<br> Notice establishing the ICT Board amongst others, I would<br> first shed light on the processes which such legal notices<br> follow. <br> 1. The parent ministry would go through<br> the policy formulation process including stakeholder<br> consultation and approve the policy that a new state<br> corporation was necessary and also list its functions. In<br> this particular case, this step was not necessary since<br> the<br> policy was gazetted in the Executive Order No. 1 on the<br> reorganization of Government.<br> 2. Second, the Ministry would get a body<br> or individuals with necessary sector and legal expertise<br> to<br> draft the Legal Notice which would be reviewed at<br> ministerial level before being forwarded to the Permanent<br> (now Principal) Secretary. For the ICT sector, the<br> National Communication Secretariat would normally perform<br> this function as provided for in Section 102 of the Kenya<br> Communications Act. Not only did it have technical<br> experts,<br> it had a legal expert and could use consultants where<br> necessary. The Permanent (now Principal) Secretary would,<br> after seeking approval from the Minister (CS), forward<br> the Legal notice the Attorney General for review.<br> 3. The Attorney General would read the<br> Legal Notice and highlight any areas which fail to comply<br> with the Law (Constitution, Acts of Parliament and<br> Subsidiary Legislation) and recommend correction or<br> redrafting. If satisfied, the Attorney General would<br> forward two copies of the Legal Notice to the Permanent<br> Secretary with a cover letter indicating that the<br> President<br> may sign if he agrees.<br> 4. The President would sign the Legal<br> Notice (if he agrees) and a copy would be forwarded to the<br> Principal Secretary who would forward it again to the<br> Attorney General who would now give it the Legal Notice<br> number (in this case Legal Notice No. 183) and forward it<br> to<br> the Government Printer for publication.<br> Away from the government bureaucracy, what happened in<br> this<br> case is that the drafters, as highlighted in the court<br> proceeding, were content with having the CS of Treasury<br> and<br> the CS of the Parent Ministry as the only two central and<br> county members of the Board of the Authority. By doing<br> so, they also complied with the provisions of the<br> State Corporation Act which provides for a maximum of<br> three. Indeed, I fully agree with them on this matter.<br> But they used the words ‘public servants’ when<br> drafting.<br> Unfortunately and most likely unknown to the drafters, the<br> Constitution of Kenya 2010 had defined a public servant in<br> such a manner that it goes beyond central and county<br> government employees. So we have the unfortunate situation<br> where dons from public universities can sit on the Boards<br> of<br> most State Corporation and even Councils of the Public<br> Universities (which as also state corporations) but they<br> cannot sit on the Board of the ICT Authority.<br> My personal opinion is that the situation can be corrected<br> by either appointing another Board while excluding the two<br> dons and also staggering the appointments or<br> alternatively withdrawing the legal notice and gazetting<br> another one which fulfils the intention of the drafters<br> and<br> provides for staggered terms of office.<br> Let me have your views.<br> Prof. James A. Kulubi <br> <br> --------------------------------------------<br> On Mon, 11/8/14, Walubengo J via kictanet <kictanet@lists.kictanet.or.ke><br> wrote:<br> <br> Subject: Re: [kictanet] ICT Authority Board<br> Appointments<br> Quashed by the High Court<br> To: jkulubi@yahoo.co.uk<br> Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke><br> Date: Monday, 11 August, 2014, 15:05<br> <br> Thnx Kamotho. Suprised it took<br> the judge many paragraphs to conclude what I have<br> always<br> known :-) <br> <br> And I quote the judge in part on article 50 of the<br> judgement.<br> <br> --------<<<<<br> 50......Based on the material before me I am NOT<br> (emphasis<br> by me) convinced that the mere fact that the 1st and<br> 4th<br> interested parties may be permanent and pensionable<br> employees of the University of Nairobi necessarily<br> qualify<br> them to be public officers as defined under Article<br> 260 of<br> the Constitution.<br> --------<<<<<<br> <br> Cool!<br> <br> walu.<br> --------------------------------------------<br> On Mon, 8/11/14, Kamotho Njenga <kamothonjenga@gmail.com><br> wrote:<br> <br> Subject: Re: [kictanet] ICT Authority Board<br> Appointments<br> Quashed by the High Court<br> To: "Walubengo J" <jwalu@yahoo.com><br> Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke><br> Date: Monday, August 11, 2014, 12:41 PM<br> <br> @Walu<br> <br> Attached is a copy of the judgement. The<br> public university dons question is addressed at<br> paragraphs<br> 41-50 of the ruling. As per tradition, courts may<br> not<br> necessarily pronounce all issues in "plain<br> language". Should such challenges be encountered, it<br> is<br> advisable to befriend a competent legal<br> practitioner.<br> <br> <br> Kamotho<br> <br> <br> On Sat,<br> Aug 9, 2014 at 6:17 PM, Walubengo J <jwalu@yahoo.com><br> wrote:<br> <br> @Kamotho,<br> <br> <br> <br> Thanx for the detailed response. I wish you could<br> point us<br> to the full judgement, I am still keen to see how<br> the<br> judge<br> managed to argue out my gut feeling about public<br> university<br> dons i.e. being able to find that they are indeed not<br> part<br> of the envisioned "public" servants as specified<br> in the clause barring public servants sitting on<br> such<br> boards.<br> <br> <br> <br> <br> As for the change of modus operandi at the ministry,<br> I do<br> agree it has happened and have blogged and<br> complained<br> about<br> it - without losing my pay (@ Ngigi :-)<br> <br> <br> <br> But I am not sure all is lost. Perhaps there are<br> just<br> multiple routes to the same objective and we may just<br> need<br> some consensus and understanding on both sides<br> (ministry/industry).<br> <br> <br> <br> regds.<br> <br> <br> <br> walu.<br> <br> --------------------------------------------<br> <br> On Sat, 8/9/14, Kamotho Njenga<br> <kamothonjenga@gmail.com><br> wrote:<br> <br> <br> <br> Subject: Re: [kictanet] ICT Authority Board<br> Appointments<br> Quashed by the High Court<br> <br> To: "Walubengo J" <jwalu@yahoo.com><br> <br> Cc: "KICTAnet ICT Policy Discussions"<br> <kictanet@lists.kictanet.or.ke><br> <br> Date: Saturday, August 9, 2014, 1:30 PM<br> <br> <br> <br> @Walu,<br> <br> I am entirely in agreement that the<br> <br> intellectual capital residing within academia is<br> <br> astronomical and any policy that expressly forbids<br> academics<br> <br> from disbursing their knowledge treasures to<br> Public<br> Boards<br> <br> is frail in logic. As a matter of full disclosure<br> and as<br> you<br> <br> are aware, I also spend some time in lecture halls<br> on<br> <br> account of what I believe to be a high calling. So,<br> it<br> was<br> <br> obviously not very convenient for me to advance<br> the<br> <br> "ant-lecturer" line of argument. But once you<br> <br> choose to walk through the corridors of justice,<br> there<br> is<br> no<br> <br> option but to stick to the straight and narrow<br> legal<br> path.<br> <br> All contested matters of law however trivial they<br> appear<br> <br> must be laid bare before the court. Moreover when<br> it<br> became<br> <br> apparent that the decision making authority was<br> deliberately<br> <br> contemptuous, we had to pursue the strict<br> compliance<br> <br> doctrine. <br> <br> <br> <br> <br> <br> ICTAK's petition was<br> <br> anchored on multiple grounds. The ground on the<br> appointment<br> <br> of Public University Dons was like a ribbon on the<br> package.<br> <br> It stemmed from the fact that the Legal Notice No.<br> 183<br> of<br> <br> 2013 out-rightly forbid the inclusion of public<br> officers<br> in<br> <br> the board. Our contention was that since public<br> universities<br> <br> are largely funded through public funds, lecturers<br> can<br> be<br> <br> deemed to fall under the public officers category.<br> Upon<br> <br> rigorous interrogation, the court was not convinced<br> by<br> this<br> <br> argument and therefore this ground was strikingly<br> shattered<br> <br> by the court. Thus as far as the ruling goes, no<br> one<br> should<br> <br> deny Walu an opportunity to sit on the next ICTA<br> Board<br> under<br> <br> the pretext that he is a "public officer".<br> <br> <br> <br> <br> <br> But why should the cabinet secretary<br> <br> be precluded from appointing public officers to<br> his<br> list?<br> <br> Isn't this discriminatory? These questions can be<br> best<br> <br> answered by analyzing the composition and context<br> within<br> <br> which boards operate. For instance, when<br> completely<br> <br> structured, ICTA Board should consist of the<br> following:<br> <br> <br> <br> -A chairman (appointed by the President)<br> <br> -PSs 1. ICT 2. Treasury 3. Lands and<br> <br> Housing<br> <br> -CEO (The first CEO to be<br> <br> hired competitively by the CS, the successors to<br> be<br> hired<br> by<br> <br> the Board)<br> <br> -Not more than six other<br> <br> persons not being public officers<br> <br> <br> <br> <br> <br> The global trend in governance is<br> <br> that of public-private stewardship. Thus, if the CS<br> was<br> <br> allowed to nominate the six other persons from the<br> public<br> <br> service, the weight of the board would heavily<br> tilt<br> towards<br> <br> the executive side and questions of independence<br> would<br> <br> naturally arise. Public-private combination also<br> helps<br> <br> resolve the potential challenge of ideological<br> <br> inbreeding.<br> <br> <br> <br> <br> <br> Over the<br> <br> years, we advanced the logic to have the various<br> public<br> <br> agencies within the ICT sector converged. When the<br> executive<br> <br> order on the same was finally signed by the<br> President,<br> we<br> <br> anticipated a drastically bright future for the<br> Kenyan<br> ICT<br> <br> sector. At the same time, we recognized that there<br> are<br> a<br> <br> range of issues that require harmonization in the<br> course<br> of<br> <br> time. On this basis we have variously pleaded with<br> the<br> <br> ministry to convene a multi-stakeholder forum so<br> that<br> the<br> <br> ICT community can ventilate their concerns and<br> make<br> <br> contribution to policy. This to no avail. In good<br> faith,<br> we<br> <br> have also invited the ministry to useful events<br> where<br> <br> business relevant to them is transacted but they<br> have<br> failed<br> <br> to show up. In the true African spirit, we have<br> <br> optimistically hoped that they will reciprocate<br> our<br> multiple<br> <br> invitations, at least with a single invite even to<br> their<br> <br> lowest profile event, only to harshly realize that<br> "our<br> <br> hopes are not valid".<br> <br> <br> <br> <br> <br> All along, we have held a strong desire to<br> <br> support the Kenyan ICT excellence dream. However,<br> without<br> <br> fear of contradiction, I regrettably submit that<br> the<br> modus<br> <br> operandi at the ICT ministry has tragically<br> deflated the<br> ICT<br> <br> momentum and enthusiasm that prior leadership<br> strove to<br> <br> gather. Never has it been so difficult to offer a<br> helping<br> <br> hand at the ministry! I nostalgically miss the<br> times<br> when<br> <br> Hon Rege, Hon Mutahi Kagwe, Hon Poghisio, Dr. Ndemo<br> were<br> at<br> <br> the helm. Those are the days when the PS or<br> Minister<br> would<br> <br> stay late into the evening consulting stakeholders<br> and<br> ooze<br> <br> visions of wisdom for the sector the following<br> dawn.<br> Court<br> <br> battles were alien to the sector.<br> <br> <br> <br> <br> <br> My personal holding is that courts should<br> <br> only be applicable as a last resort. Litigation<br> procedures<br> <br> and outcomes in their nature are very adversarial.<br> There<br> are<br> <br> majorly two possible outcomes in a court process;<br> a<br> fabulous<br> <br> winner and bitter loser. Engagement and<br> Consultation on<br> its<br> <br> part produces an endless chain of winners. But if <br> the<br> <br> Kenyan ICT sector can only be successfully steered<br> through<br> <br> chamber summons, sworn affidavits and court<br> decrees;<br> then<br> my<br> <br> heart bleeds. <br> <br> <br> <br> <br> <br> Kamotho Njenga<br> <br> <br> <br> <br> <br> <br> <br> On Fri,<br> <br> Aug 8, 2014 at 5:35 PM, Walubengo J <jwalu@yahoo.com><br> <br> wrote:<br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> @Kamotho,<br> <br> <br> <br> <br> <br> <br> <br> am yet to read the full ruling. But if i recall<br> well the<br> key<br> <br> contention/plea was that the appointment of Public<br> <br> University staff into the various ICT Boards to be<br> be<br> found<br> <br> illegal.<br> <br> <br> <br> <br> <br> <br> <br> it appears the judges are in agreement. However,<br> considering<br> <br> the amount of intelkectual talent within public<br> universities<br> <br> - dont you think it is discriminatory that that<br> group<br> of<br> <br> staff are barred from contributing to national<br> development<br> <br> at a Board level?<br> <br> <br> <br> <br> <br> <br> <br> <br> <br> Is it time to review this clause or it does serve<br> the<br> <br> purpose?<br> <br> <br> <br> <br> <br> <br> <br> walu.<br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> ------------------------------<br> <br> <br> <br> On Fri, Aug 8, 2014 1:19 PM AST<br> <br> (Arabian) Kamotho Njenga via kictanet wrote:<br> <br> <br> <br> <br> <br> <br> <br> >The illegal appointments made by the ICT<br> Cabinet<br> <br> Secretary, Dr Fred<br> <br> <br> <br> >Matiang'i have been quashed by the High Court.<br> <br> Details on the background<br> <br> <br> <br> >and the orders of the court are available at<br> <br> <br> <br> >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<br> <br> <br> <br> <br> <br> <br> ><br> <br> <br> <br> >For the avoidance of doubt, partial<br> implications of<br> the<br> <br> certiorari orders<br> <br> <br> <br> >are that the impugned board was illegal *ab<br> <br> initio*. So it is like the<br> <br> <br> <br> >board never existed. Reports<br> <br> attributable to the CS are that he plans to<br> <br> <br> <br> >appeal the decision. He has an inherent right<br> to do<br> so.<br> <br> What must be clear<br> <br> <br> <br> >is that the quash orders are in full force<br> w.e.f<br> <br> yesterday and the board<br> <br> <br> <br> >cannot purport to transact or to be seen to do<br> so.<br> <br> <br> <br> ><br> <br> <br> <br> >This is a crisis the Cabinet secretary has<br> precipitated<br> <br> himself because of<br> <br> <br> <br> >a trademark unilateralism approach and failure<br> to<br> <br> engage. Any attempt by<br> <br> <br> <br> >any person whatsoever to overlook the<br> prescriptions<br> of<br> <br> the court's decree<br> <br> <br> <br> >has obvious sanctions.<br> <br> <br> <br> ><br> <br> <br> <br> >Kamotho<br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> <br> _______________________________________________<br> kictanet mailing list<br> kictanet@lists.kictanet.or.ke<br> https://lists.kictanet.or.ke/mailman/listinfo/kictanet<br> <br> Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/jkulubi%40yahoo.co.uk<br> <br> The Kenya ICT Action Network (KICTANet) is a<br> multi-stakeholder platform for people and<br> institutions<br> interested and involved in ICT policy and regulation.<br> The<br> network aims to act as a catalyst for reform in the<br> ICT<br> sector in support of the national aim of ICT enabled<br> growth<br> and development.<br> <br> KICTANetiquette : Adhere to the same standards of<br> acceptable<br> behaviors online that you follow in real life:<br> respect<br> people's times and bandwidth, share knowledge, don't<br> flame<br> or abuse or personalize, respect privacy, do not<br> spam, do<br> not market your wares or qualifications.<br><br>_______________________________________________<br>kictanet mailing list<br>kictanet@lists.kictanet.or.ke<br>https://lists.kictanet.or.ke/mailman/listinfo/kictanet<br><br>Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/hotline%40cofek.co.ke<br><br>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.<br><br>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.</body></html>