@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@gmail.com> wrote:Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke>
Subject: Re: [kictanet] ICT Authority Board Appointments Quashed by the High Court
To: "Walubengo J" <jwalu@yahoo.com>
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@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