First, I think the Government circular on appointment of CEO's to parastatals is quite clear on the process of appointments of CEO’s and it is evident that the Minister has contravened the regulations.
As far as the statutes go, this is the position:
Powers of the Board of Directors in appointments
The powers and responsibilities of
the Board of Directors are clearly outlined in Section 4(2) of the State
Corporations (Performance Contracting ) Regulations 2004,subject of course
to the State Corporations Act and any other statutes and they include inter
alia, the power to:
“…(b) recruit staff including the chief
executive of the state corporation;
(c) develop and negotiate with the
parent Ministry performance targets for the state corporation for a specified financial
year;
(f) enter into and implement performance contracts with the chief executive of
the state corporation;
(h) perform any other duties that may be deemed necessary or expedient for the
implementation of the performance contracts.”
Although there is no specific power granted to the Board to dismiss/not renew contracts of CEO’s either in the State Corporations Act or in the Kenya Information and Communications Act, there is a rule of interpretation of statutes that says that grant of a specific power necessarily implies that it also has the power to do the converse and therefore it is implied that the power of the Board to hire includes the power to fire.’
The general principle is that it is not within the power of the Minister to reinstate, recruit of dismiss the CEO.
Personal liability of Board members
Section 15 of the Kenya Information and Communications Act is clear that Board members and officers of the commission shall not be subject to personal liability for acts done in good faith for the purpose of executing their functions, powers or duties of the CCK under the Act.
So there is no reason for the Minister to report any of the Board Members to KACC for alleged improper conduct when they were acting in good faith and in the exercise of their functions for the CCK under the Act. In any case the procedure to remove or discipline a Board Member is clearly outlined in Section 11 of the State Corporations (Performance Contracting) Regulations 2004 :
“Subject to the provisions of any other Act,
the Minister may, in consultation with the committee, and based on results of
evaluation, remove a Director of a state corporation whose performance is
unsatisfactory.”
And more specifically at Section 2(b) of the First Schedule to the Kenya Information and Communications Act :
“2. A member other than the chairman or an ex-officio member may –
(b) be removed from office by the Minister if the member -
(i) has been absent from three consecutive meetings of the
Board without the
permission from chairman; or
(ii) is adjudged bankrupt or enters into a composition
scheme or arrangement
with his creditors; or
(iii) is convicted of an offence involving dishonesty or fraud; or
(iv) is convicted of a criminal offence and sentenced to imprisonment for a term exceeding six months or to a fine exceeding ten thousand shillings; or
(v) is incapacitated by prolonged physical or mental illness; or
(vi) fails to comply with the provisions of this Act relating to disclosure;
(vii) is engaged in a communications organization which operates on telecommunication system or provides telecommunication services or is engaged in the manufacture or distribution of telecommunication equipment in Kenya as an owner, shareholder, partner or otherwise, whether directly or indirectly.”
~~~
The Star
Tuesday, 19 April 2011 00:04 BY DAVID MAKALIA little over a week ago, Information and Communications minister Samuel Poghisio called a press conference to announce that he had revoked the suspension of the director general of the Communications Commission of Kenya.“For the avoidance of doubt, I wish to state that Charles Njoroge remains in office and that as the appointing authority I will proceed to renew his contract in line with the law,” he stated.
The minister’s intervention may have seemed timely and proper. Given the infighting that had become the order of the day at the CCK between the board of directors (or some) and the director-general, some form of external intervention was necessary to establish order.
However, questions still linger over what exactly the minister did, if it was legal, and if it is in the interest of the general telecommunications sector and the public in general. At the time of this writing, his re-appointment or otherwise had not been gazetted.
more @
http://tinyurl.com/3cddk4h
walu.
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