Dear colleagues A well informed source has provided me with the following juicy information. Warigia http://www.cofek.co.ke/index.php?option=com_content&view=article&id=409:why-cofek-is-to-contest-cck-director-generals-contract-renewal-in-court&catid=1:latest-news Consumers Federation of Kenya (Cofek) has today, 4th August 2011, instructed its lawyers to appear in the High Court next week against the Attorney General and Minister of Information and Communications seeking among other issues; Orders of Certiorari to quash Information and Communications Minister’s Gazette Notice No. 8925 of the Kenya Information and Communications Act (No. 2 of 1998) in which he invoked Section 6 (1) (b) to “appoint” Eng Ccharles J.K Njoroge to be the Director-General of the Communications Commission of Kenya for a period of three (3) years, with effect from the 7th July 2011 and which notice was dated the 20th July 2011 and only published on 29th July 2011 Orders of prohibition against the Minister for Information and Communications in making unilateral decisions and specifically for; Ignoring the decision and advice of the Board of the Communications Commission of Kenya (CCK) vide its letter of 9th March 2011 advising against renewal of contract/re-appointment of Eng Charles J.K Njoroge as the Director General. It is noteworthy that the advice from CCK Board had been accompanied by a clear criteria of evaluation and the fact that in the considered view of the CCK Board, the said Director General had performed below threshold - for scoring 60%. The Minister’s sensationalization of the matter in the media on diverse occasions and specifically on the 7th April 2011 in which case the Minister called a press conference and purported to have revoked the CCK Board decision asking the Director General to go on a two-week compulsory leave, and at which press conference he further announced that he would renew the Director General’s contract for an additional 3 years That the Minister’s action is a clear contravention of the circular issued on 23rd November 2010 by Permanent Secretary and Secretary to the Cabinet and Head of the Public Service Amb Francis K. Muthaura to all Ministers, Assistant Ministers, Permanent Secretaries, the Attorney General and the Controller and Auditor General and which circular was copied to Prof Nick Wanjohi as Private Secretary to His Excellency the President of the Republic of Kenya. Among other guidelines contained in the said letter are; “(a)the CEO of a State Corporation wishing to be reappointed will indicate interest by writing to the Board at least six months before expiry of his/her term (b) The Board will evaluate the performance of theCEO and make a report to the appointing authority with a recommendation on either renewal or termination of the contract upon expiry (c) In the event the Board does not recommend renewal of the contract, the CEO will proceed on terminal leave to pave way for the recruitment and appointment of a new CEO. This is important to ensure a smooth transition. (d) The Board will recruit and acting CEO, in consultation with the parent Mnistry and the State Corporations Advisory Committee (SCAC) as provided for by Section 27(1) (c) of Cap. 446 in a caretaker position when the process of recruiting a new CEO is ongoing” In view of the foregoing and in light of various provisions of the new Constitution which among others makes for competitive recruitment of the Chief Justice, the Minister’s action is a demonstration of impunity and disregard of the doctrine of separation of powers between a Minister and a state corporation Board. His action is at best a selective reading of the applicable laws and at worst a politicization of sensitive regulatory agencies whose reputation is severely dented by such unilateral decisions which have neither basis in law or could said to be part of a civilized society such as Kenya. On the basis of the directive from Head of Public Service, Cofek urges the CCK Board to proceed and immediately appoint an acting Director General as it commences a process of competitively recruiting the new Director General Finally, we appeal to all Kenyans of goodwill to rise up in numbers and support this worthy cause in protecting an apparent attack on the sanctity of applicable provisions of the Constitution of the Republic of Kenya. If left unchecked, the Minister’s action will set a bad precedent of impunity and non-accountability. Secretary General, Consumers Federation of Kenya (Cofek) http://allafrica.com/stories/201108110146.html Communication Commission of Kenya director-general Charles Njoroge will stay out of office until a case challenging his re-appointment is heard and determined. High Court judge David Maraga issued the order following a petition by the Consumers Federation of Kenya. Breach of law The lobby group had challenged Information minister Samuel Poghiso's re-appointment of Mr Njoroge on grounds that it was unconstitutional and in breach of the law. "I am satisfied that the petitioners have made out a case to grant what the prayers sought. That means the said Charles Njoroge shall from effect of this date cease to be or to act as the director-general of Communication Commission of Kenya until the matter is heard and determined," ruled Justice Maraga. The decision by the court sitting in Nairobi brought to the fore once again the controversy that surrounded the director general's tenure renewal early in the year. The board, through the chairman, Mr Philip Okundi, had recommended the termination of Mr Njoroge's three-year term at the helm of the regulator. However, after a protracted battle, the minister on July 29 reappointed him in a gazette notice after which the lobby group moved to court. In his ruling, Justice Maraga also directed that the commission's board appoint an acting director-general as the case is being heard. According to the consumers' lobby, in an application filed by secretary-general Stephen Mutoro, the minister did not comply with the law and ignored the board's recommendation. "His decision was irrational and capricious because he revoked the board's decision to send Mr Njoroge on a two-week compulsory leave and at the same time announced he will renew the contract for an additional three years," read the application. In reaching his ruling, Justice Maraga noted that the board declined to recommend him for reappointment and accordingly advised the minister. The judge said the minister ignored the board's advice and reappointed Mr Njoroge for a further three years. Justice Maraga also allowed the consumer lobby to apply for judicial review and directed that they file an application within 15 days. -- On 8/11/11, Charles Mutsi <cmutsi@yahoo.com> wrote:
Solomon,
Who knows who is right or wrong? Let's step back from the specifics of this case. Going forward, anybody who takes an oath to hold public office will have to literally uphold and protect the constitution. Most of them are now protecting themselves and their cronies. But the game has changed forever. The only thing that prevents the political elite realizing this is the lethargy and docility of us Kenyans especially the middle class. Any senior public official (Minister, PS etc) will have to engage a full time legal adviser to ensure that they avoid the pitfalls of the courtroom. BUT... THIS IS GOOD. It is part of the price of fighting impunity. In the short term, there will be a lot of wrangling. But that is because we have public officials who still think they are the Lords of the Ring. Once they recognize this reality (please note that it will be painful and long drawn for most of them), things will cool down. The courts will become less activist and balance will be restored. But the skirmishes will be plenty.
--- On Thu, 8/11/11, Solomon Mbũrũ Kamau <solo.mburu@gmail.com> wrote:
From: Solomon Mbũrũ Kamau <solo.mburu@gmail.com> Subject: Re: [kictanet] Court Ruling on CCK DG To: "Charles M" <cmutsi@yahoo.com> Cc: "KICTAnet ICT Policy Discussions" <kictanet@lists.kictanet.or.ke> Date: Thursday, August 11, 2011, 12:17 PM
@ Charles, All these depends on a niumber of factors. Was the minister acting within the law? Was the re-appointment of CCK's DG necessary? At times, when we allow courts to act in this way, we might end up being a court run country literary. Why? Because everybody will be running to the court whenever an issue is going against them. Maybe someone needs to tell me, what did the DG fail to do, for me to give my opinions. At times, it looks a political survival for some leaders who don't want to look any irrelevant.
I'm just lost in this whole cycle.
On 11/08/2011, warigia bowman <warigia@aucegypt.edu> wrote:
Dear Brian
I am with you ndugu!
Can you please review the ruling for me? Some of us were upcountry yesterday and only heard it briefly.
Yours, Rigia
On Thu, Aug 11, 2011 at 3:04 PM, Charles Mutsi <cmutsi@yahoo.com> wrote:
Am I the only one who thinks that yesterday's court ruling is landmark for our country and the rule of law. Another nail in the coffin of impunity!! People this is BIG. Anybody can challenge anything. So our government has to walk the straight and narrow!! How many other such irregular appointments are made by government? Just yesterday, the Honorable PM's OFFICE was quoted as ordering the board of Lake Victoria water Services to reinstate the CEO. He has also directed the PS to reconstitute the board. A board is appointed for a specific tenure. Has their term ended. If not, will such reconstituting be legal? Is the board obliged to follow a Prime Ministerial directive for what is a designated board function? What recourse does the PM's office have if the board ignore his directive? Take the Koskey case. The minister disregarded a decision by the board and went ahead to appoint someone else. Going forward, political and government leaders will have to learn how to influence rather than decree. In the meantime, being a Minister is not all it's cracked up to be. You can't even appoint an MD!! .
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