Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest
Dear Listers, Thank you for all of you who contributed to Day 4 discussions on SECTION 5: CONSTITUTION AND APPOINTMENT OF COMMISSIONERS TO COMMISSION and SECTION 6: DISQUALIFICATION. In summary, Muriuki recommended that the commissioners represent the supply side of the equation and there is a need for the demand side of the equation which includes civil society, professional societies etc. He also cautioned that while aspiring for suitable qualifications, expertise and experience, it is possible to get commissioners who have no interest in this sector. He suggested a framework which includes a full disclosure as a condition of appointment and resignation of active participation in the sector. On the other hand, Walu argued that WHO gets appointed is not as critical as the representative structure of the commissioners, which needs to be redefined. This is in line with Matunda’s concern that there is a need to consider something about need for diverse backgrounds of commissioners with emphasis on technical business leadership, regulatory policy, etc. Kay Kerubo does not like the idea of Appointees being endorsed by Parliament as it could lead to political interference. She suggested that the Chairperson should not have a longer term than other Commissioners, that term should be 3 years in her view. Jane Thuo supported this view adding that if the Chair has a longer term he/she will carry baggage to the next Board. She emphasized the need for a gender balance rather than the old 30%. Matunda suggested that Commissioners appointments should be staggered in such as way that there are "overlaps" to ensure continuity; for instance we can have a condition that not more than 50% of Commissioner terms can end at the same time. Finally, Matunda said that the Cabinet secretary (not the President) should make appointments on recommendation of PSC. This would be in line with decentralization of power that has been at the core of the recently promulgated constitution. DAY 5-6: The discussion today will flow over to Monday 21 Feb. evening. Feel free to write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill: SECTION 7: TERMS OF OFFICE SECTION 8: REMOVAL FROM OFFICE SECTION 10: REMUNERATION SECTION 12: CONFLICT OF INTEREST [Kindly show which Section you are discussing, it will help with feedback and input to the main Report] SECTION 7: This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners. 7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term. (6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause. SECTION 8: There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following: 8. (1) (e). Incompetence; Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory? What about 8. (1)(h): A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1); Question: Does this make perfect sense? Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place? SECTION 10: REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance. Question: Your thoughts on this? SECTION 12: While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues. So we will discuss ‘CONFLICT OF INTEREST’: This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion: 12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if -- (b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try. Sincerely, Nyaki
I suggest the Predient makes the appointment of the chairperson and members approved and forwarded by the PSC. This will give the office assume more powers than if the appointment is done by the Cabinet Secretary. I am of the opinion that Clauses 5. (1) and 5. (1) (d) and relelated clauses remain as they rae. Secondly I suggest the veting by Parliament be part of the appointment process. This will ake it more difficult for manipulation of the appoint process by the President and the PSC. I also has a problem with Clause 6. (1) (e) on Disqulification. If his or her family member has a direct or indirect financial interest in the sector. This can be interpretated to mean that if an individual or his/her member of a family owns some shares in an a company in the sector then he/her does not qualify to be a commissioner. This needs to be qualified further. I therefore suggest that this clause be looked into and be amended to bar only individuls/owners of firms with controlling shares in any company in the sector. It can easily be used negatively if not carefully reconsidered. Coming to the Clauses for today: Clause 7. Terms of Office: There is some kind of overlap period that needs to be taken care of. The Clause can be amended so that only 50% of the commissioners retire at the expiry of their first term. The major challenge will be how to decide who to retire. May be the Commissioners can be allowed to vote on this amongst themselves. Alternatively it can be determined based on the represatives of particular interest, e.g. civil society, consumers. I will comment on the other Clauses later. Regards Eng. Vitalis Olunga ________________________________ From: Catherine Adeya <elizaslider@yahoo.com> To: volunga@yahoo.com Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Fri, February 18, 2011 5:09:59 AM Subject: [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest Dear Listers, Thank you for all of you who contributed to Day 4 discussions on SECTION 5: CONSTITUTION AND APPOINTMENT OF COMMISSIONERS TO COMMISSION and SECTION 6: DISQUALIFICATION. In summary, Muriuki recommended that the commissioners represent the supply side of the equation and there is a need for the demand side of the equation which includes civil society, professional societies etc. He also cautioned that while aspiring for suitable qualifications, expertise and experience, it is possible to get commissioners who have no interest in this sector. He suggested a framework which includes a full disclosure as a condition of appointment and resignation of active participation in the sector. On the other hand, Walu argued that WHO gets appointed is not as critical as the representative structure of the commissioners, which needs to be redefined. This is in line with Matunda’s concern that there is a need to consider something about need for diverse backgrounds of commissioners with emphasis on technical business leadership, regulatory policy, etc. Kay Kerubo does not like the idea of Appointees being endorsed by Parliament as it could lead to political interference. She suggested that the Chairperson should not have a longer term than other Commissioners, that term should be 3 years in her view. Jane Thuo supported this view adding that if the Chair has a longer term he/she will carry baggage to the next Board. She emphasized the need for a gender balance rather than the old 30%. Matunda suggested that Commissioners appointments should be staggered in such as way that there are "overlaps" to ensure continuity; for instance we can have a condition that not more than 50% of Commissioner terms can end at the same time. Finally, Matunda said that the Cabinet secretary (not the President) should make appointments on recommendation of PSC. This would be in line with decentralization of power that has been at the core of the recently promulgated constitution. DAY 5-6: The discussion today will flow over to Monday 21 Feb. evening. Feel free to write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill: SECTION 7: TERMS OF OFFICE SECTION 8: REMOVAL FROM OFFICE SECTION 10: REMUNERATION SECTION 12: CONFLICT OF INTEREST [Kindly show which Section you are discussing, it will help with feedback and input to the main Report] SECTION 7: This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners. 7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term. (6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause. SECTION 8: There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following: 8. (1) (e). Incompetence; Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory? What about 8. (1)(h): A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1); Question: Does this make perfect sense? Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place? SECTION 10: REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance. Question: Your thoughts on this? SECTION 12: While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues. So we will discuss ‘CONFLICT OF INTEREST’: This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion: 12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if -- (b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try. Sincerely, Nyaki
Thanks Vitalis...your comments will be taken into consideration. Catherine ________________________________ From: Vitalis Olunga <volunga@yahoo.com> To: Catherine Adeya <elizaslider@yahoo.com> Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Fri, February 18, 2011 1:01:04 PM Subject: Re: [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest I suggest the Predient makes the appointment of the chairperson and members approved and forwarded by the PSC. This will give the office assume more powers than if the appointment is done by the Cabinet Secretary. I am of the opinion that Clauses 5. (1) and 5. (1) (d) and relelated clauses remain as they rae. Secondly I suggest the veting by Parliament be part of the appointment process. This will ake it more difficult for manipulation of the appoint process by the President and the PSC. I also has a problem with Clause 6. (1) (e) on Disqulification. If his or her family member has a direct or indirect financial interest in the sector. This can be interpretated to mean that if an individual or his/her member of a family owns some shares in an a company in the sector then he/her does not qualify to be a commissioner. This needs to be qualified further. I therefore suggest that this clause be looked into and be amended to bar only individuls/owners of firms with controlling shares in any company in the sector. It can easily be used negatively if not carefully reconsidered. Coming to the Clauses for today: Clause 7. Terms of Office: There is some kind of overlap period that needs to be taken care of. The Clause can be amended so that only 50% of the commissioners retire at the expiry of their first term. The major challenge will be how to decide who to retire. May be the Commissioners can be allowed to vote on this amongst themselves. Alternatively it can be determined based on the represatives of particular interest, e.g. civil society, consumers. I will comment on the other Clauses later. Regards Eng. Vitalis Olunga ________________________________ From: Catherine Adeya <elizaslider@yahoo.com> To: volunga@yahoo.com Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Fri, February 18, 2011 5:09:59 AM Subject: [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest Dear Listers, Thank you for all of you who contributed to Day 4 discussions on SECTION 5: CONSTITUTION AND APPOINTMENT OF COMMISSIONERS TO COMMISSION and SECTION 6: DISQUALIFICATION. In summary, Muriuki recommended that the commissioners represent the supply side of the equation and there is a need for the demand side of the equation which includes civil society, professional societies etc. He also cautioned that while aspiring for suitable qualifications, expertise and experience, it is possible to get commissioners who have no interest in this sector. He suggested a framework which includes a full disclosure as a condition of appointment and resignation of active participation in the sector. On the other hand, Walu argued that WHO gets appointed is not as critical as the representative structure of the commissioners, which needs to be redefined. This is in line with Matunda’s concern that there is a need to consider something about need for diverse backgrounds of commissioners with emphasis on technical business leadership, regulatory policy, etc. Kay Kerubo does not like the idea of Appointees being endorsed by Parliament as it could lead to political interference. She suggested that the Chairperson should not have a longer term than other Commissioners, that term should be 3 years in her view. Jane Thuo supported this view adding that if the Chair has a longer term he/she will carry baggage to the next Board. She emphasized the need for a gender balance rather than the old 30%. Matunda suggested that Commissioners appointments should be staggered in such as way that there are "overlaps" to ensure continuity; for instance we can have a condition that not more than 50% of Commissioner terms can end at the same time. Finally, Matunda said that the Cabinet secretary (not the President) should make appointments on recommendation of PSC. This would be in line with decentralization of power that has been at the core of the recently promulgated constitution. DAY 5-6: The discussion today will flow over to Monday 21 Feb. evening. Feel free to write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill: SECTION 7: TERMS OF OFFICE SECTION 8: REMOVAL FROM OFFICE SECTION 10: REMUNERATION SECTION 12: CONFLICT OF INTEREST [Kindly show which Section you are discussing, it will help with feedback and input to the main Report] SECTION 7: This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners. 7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term. (6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause. SECTION 8: There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following: 8. (1) (e). Incompetence; Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory? What about 8. (1)(h): A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1); Question: Does this make perfect sense? Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place? SECTION 10: REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance. Question: Your thoughts on this? SECTION 12: While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues. So we will discuss ‘CONFLICT OF INTEREST’: This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion: 12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if -- (b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try. Sincerely, Nyaki
Hi Cathy Thanks for sustaining the debate ----- Section 11 My concern is meetings of the ICCK . firstly, we need to get a clause to make it possible for an interested party to have access to the meeting minutes . it augers well with transparency and supports the independence of the commission , secondly, section 11(3) is not good . how can those present make a quorum. Without a floor one or two commissioners can make a quorum and do a formal meeting while doing nyama choma in masai mara considering that meetings can be held anywhere - in fact even outside kenya!!!. We need a floor . Quorum should start from 5. These guys are full time employees and so should be available . Meetings should be held in the republic of Kenya The minimum number of meetings per year should be specified - lets put a floor --- the guys can go to bed after appointment . the old Act has a floor --- Section 12 12 (1) (b) is impossible to happen if the appointment of the commissioner fulfilled 6 (1) (e) or (f) . it is either one or the other. However if we assume that one was eligible to be a commissioner and gets appointed and then a family member got an interest in the sector , what is the commissioner supposed to do to sustain clause 6 (1) e or f? these two sections need a serious rethink to polish it .the intent is good however cheers Muriuki Mureithi The happiest of people don't necessarily HAVE the best of everything; They just MAKE the best of everything From: kictanet-bounces+mureithi=summitstrategies.co.ke@lists.kictanet.or.ke [mailto:kictanet-bounces+mureithi=summitstrategies.co.ke@lists.kictanet.or.ke] On Behalf Of Catherine Adeya Sent: 18 February 2011 05:10 To: mureithi@summitstrategies.co.ke Cc: KICTAnet ICT Policy Discussions Subject: [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest Dear Listers, Thank you for all of you who contributed to Day 4 discussions on SECTION 5: CONSTITUTION AND APPOINTMENT OF COMMISSIONERS TO COMMISSION and SECTION 6: DISQUALIFICATION. In summary, Muriuki recommended that the commissioners represent the supply side of the equation and there is a need for the demand side of the equation which includes civil society, professional societies etc. He also cautioned that while aspiring for suitable qualifications, expertise and experience, it is possible to get commissioners who have no interest in this sector. He suggested a framework which includes a full disclosure as a condition of appointment and resignation of active participation in the sector. On the other hand, Walu argued that WHO gets appointed is not as critical as the representative structure of the commissioners, which needs to be redefined. This is in line with Matunda’s concern that there is a need to consider something about need for diverse backgrounds of commissioners with emphasis on technical business leadership, regulatory policy, etc. Kay Kerubo does not like the idea of Appointees being endorsed by Parliament as it could lead to political interference. She suggested that the Chairperson should not have a longer term than other Commissioners, that term should be 3 years in her view. Jane Thuo supported this view adding that if the Chair has a longer term he/she will carry baggage to the next Board. She emphasized the need for a gender balance rather than the old 30%. Matunda suggested that Commissioners appointments should be staggered in such as way that there are "overlaps" to ensure continuity; for instance we can have a condition that not more than 50% of Commissioner terms can end at the same time. Finally, Matunda said that the Cabinet secretary (not the President) should make appointments on recommendation of PSC. This would be in line with decentralization of power that has been at the core of the recently promulgated constitution. DAY 5-6: The discussion today will flow over to Monday 21 Feb. evening. Feel free to write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill: SECTION 7: TERMS OF OFFICE SECTION 8: REMOVAL FROM OFFICE SECTION 10: REMUNERATION SECTION 12: CONFLICT OF INTEREST [Kindly show which Section you are discussing, it will help with feedback and input to the main Report] SECTION 7: This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners. 7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term. (6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause. SECTION 8: There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following: 8. (1) (e). Incompetence; Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory? What about 8. (1)(h): A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1); Question: Does this make perfect sense? Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place? SECTION 10: REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance. Question: Your thoughts on this? SECTION 12: While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues. So we will discuss ‘CONFLICT OF INTEREST’: This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion: 12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if -- (b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try. Sincerely, Nyaki
I agree with MM's comment on Section 11, on the issue of the minutes of the meetings being availed to interested stakeholders, with regard to appointment of commissioners in section 12 could we have industry bodies nominating representatives to the PSC for confirmation, TESPOK, Civil Society, KEPSA, this would ensure there is buy in from the Industry. On Fri, Feb 18, 2011 at 6:19 PM, muriuki mureithi < mureithi@summitstrategies.co.ke> wrote:
Hi Cathy
Thanks for sustaining the debate -----
Section 11
My concern is meetings of the ICCK . firstly, we need to get a clause to make it possible for an interested party to have access to the meeting minutes . it augers well with transparency and supports the independence of the commission , secondly, section 11(3) is not good . how can those present make a quorum. Without a *floor* one or two commissioners can make a quorum and do a formal meeting while doing nyama choma in masai mara considering that meetings can be held anywhere - in fact even outside kenya!!!. We need a floor . Quorum should start from 5. These guys are full time employees and so should be available . Meetings should be held in the republic of Kenya
The minimum number of meetings per year should be specified - lets put a floor --- the guys can go to bed after appointment . the old Act has a floor ---
Section 12
12 (1) (b) is impossible to happen if the appointment of the commissioner fulfilled 6 (1) (e) or (f) . it is either one or the other. However if we assume that one was eligible to be a commissioner and gets appointed and then a family member got an interest in the sector , what is the commissioner supposed to do to sustain clause 6 (1) e or f? these two sections need a serious rethink to polish it .the intent is good however
cheers
Muriuki Mureithi
*The happiest of people don't necessarily HAVE the best of everything; * *They just MAKE the best of everything*
*From:* kictanet-bounces+mureithi=summitstrategies.co.ke@ lists.kictanet.or.ke [mailto:kictanet-bounces+mureithi= summitstrategies.co.ke@lists.kictanet.or.ke] *On Behalf Of *Catherine Adeya *Sent:* 18 February 2011 05:10 *To:* mureithi@summitstrategies.co.ke
*Cc:* KICTAnet ICT Policy Discussions *Subject:* [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest
Dear Listers,
Thank you for all of you who contributed to Day 4 discussions on SECTION 5: CONSTITUTION AND APPOINTMENT OF COMMISSIONERS TO COMMISSION and SECTION 6: DISQUALIFICATION. In summary, Muriuki recommended that the commissioners represent the supply side of the equation and there is a need for the demand side of the equation which includes civil society, professional societies etc. He also cautioned that while aspiring for suitable qualifications, expertise and experience, it is possible to get commissioners who have no interest in this sector. He suggested a framework which includes a full disclosure as a condition of appointment and resignation of active participation in the sector.
On the other hand, Walu argued that WHO gets appointed is not as critical as the representative structure of the commissioners, which needs to be redefined. This is in line with Matunda’s concern that there is a need to consider something about need for diverse backgrounds of commissioners with emphasis on technical business leadership, regulatory policy, etc.
Kay Kerubo does not like the idea of Appointees being endorsed by Parliament as it could lead to political interference. She suggested that the Chairperson should not have a longer term than other Commissioners, that term should be 3 years in her view. Jane Thuo supported this view adding that if the Chair has a longer term he/she will carry baggage to the next Board. She emphasized the need for a gender balance rather than the old 30%. Matunda suggested that Commissioners appointments should be staggered in such as way that there are "overlaps" to ensure continuity; for instance we can have a condition that not more than 50% of Commissioner terms can end at the same time.
Finally, Matunda said that the Cabinet secretary (not the President) should make appointments on recommendation of PSC. This would be in line with decentralization of power that has been at the core of the recently promulgated constitution.
*DAY 5-6:*
The discussion today will flow over to Monday 21 Feb. evening. Feel free to write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill:
SECTION 7: TERMS OF OFFICE
SECTION 8: REMOVAL FROM OFFICE
SECTION 10: REMUNERATION
SECTION 12: CONFLICT OF INTEREST
[Kindly show which Section you are discussing, it will help with feedback and input to the main Report]
*SECTION 7*:
This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners.
7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term.
(6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment
*Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause.*
*SECTION 8*:
There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following:
8. (1) (e). Incompetence;
*Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory?*
*What about 8. (1)(h)*: A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1);
*Question: Does this make perfect sense?*
*Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place?*
*SECTION 10*:
REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance.
*Question: Your thoughts on this*?
*SECTION 12*:
While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues.
So we will discuss ‘CONFLICT OF INTEREST’:
This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion:
12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if --
(b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc
*Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try.*
Sincerely,
Nyaki
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Listers, Depending on where you are...it is a beautiful sunny day...wintry and cold or rainy and muddy....enjoy it anyway. Please feel free to continue the debates this weekend, especially on this Day 5-6 topic. Muriuki, you have certainly read this Bill and thought through it. Thank you for your useful contributions. It will be interesting to see what other Listers think about your suggestion especially that of allowing an interested party access to the Minutes of the Commission. It makes the word 'independence' make sense. I do agree there may need to be a stipulated minimum number of meetings. Have a great weekend. Nyaki ________________________________ From: muriuki mureithi <mureithi@summitstrategies.co.ke> To: Catherine Adeya <elizaslider@yahoo.com> Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Fri, February 18, 2011 6:19:27 PM Subject: RE: [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest Hi Cathy Thanks for sustaining the debate ----- Section 11 My concern is meetings of the ICCK . firstly, we need to get a clause to make it possible for an interested party to have access to the meeting minutes . it augers well with transparency and supports the independence of the commission , secondly, section 11(3) is not good . how can those present make a quorum. Without a floor one or two commissioners can make a quorum and do a formal meeting while doing nyama choma in masai mara considering that meetings can be held anywhere - in fact even outside kenya!!!. We need a floor . Quorum should start from 5. These guys are full time employees and so should be available . Meetings should be held in the republic of Kenya The minimum number of meetings per year should be specified - lets put a floor --- the guys can go to bed after appointment . the old Act has a floor --- Section 12 12 (1) (b) is impossible to happen if the appointment of the commissioner fulfilled 6 (1) (e) or (f) . it is either one or the other. However if we assume that one was eligible to be a commissioner and gets appointed and then a family member got an interest in the sector , what is the commissioner supposed to do to sustain clause 6 (1) e or f? these two sections need a serious rethink to polish it .the intent is good however cheers Muriuki Mureithi The happiest of people don't necessarily HAVE the best of everything; They just MAKE the best of everything From:kictanet-bounces+mureithi=summitstrategies.co.ke@lists.kictanet.or.ke [mailto:kictanet-bounces+mureithi=summitstrategies.co.ke@lists.kictanet.or.ke] On Behalf Of Catherine Adeya Sent: 18 February 2011 05:10 To: mureithi@summitstrategies.co.ke Cc: KICTAnet ICT Policy Discussions Subject: [kictanet] Day 5-6: Terms of Office, Removal from Office, Remuneration and Conflict of Interest Dear Listers, Thank you for all of you who contributed to Day 4 discussions on SECTION 5: CONSTITUTION AND APPOINTMENT OF COMMISSIONERS TO COMMISSION and SECTION 6: DISQUALIFICATION. In summary, Muriuki recommended that the commissioners represent the supply side of the equation and there is a need for the demand side of the equation which includes civil society, professional societies etc. He also cautioned that while aspiring for suitable qualifications, expertise and experience, it is possible to get commissioners who have no interest in this sector. He suggested a framework which includes a full disclosure as a condition of appointment and resignation of active participation in the sector. On the other hand, Walu argued that WHO gets appointed is not as critical as the representative structure of the commissioners, which needs to be redefined. This is in line with Matunda’s concern that there is a need to consider something about need for diverse backgrounds of commissioners with emphasis on technical business leadership, regulatory policy, etc. Kay Kerubo does not like the idea of Appointees being endorsed by Parliament as it could lead to political interference. She suggested that the Chairperson should not have a longer term than other Commissioners, that term should be 3 years in her view. Jane Thuo supported this view adding that if the Chair has a longer term he/she will carry baggage to the next Board. She emphasized the need for a gender balance rather than the old 30%. Matunda suggested that Commissioners appointments should be staggered in such as way that there are "overlaps" to ensure continuity; for instance we can have a condition that not more than 50% of Commissioner terms can end at the same time. Finally, Matunda said that the Cabinet secretary (not the President) should make appointments on recommendation of PSC. This would be in line with decentralization of power that has been at the core of the recently promulgated constitution. DAY 5-6: The discussion today will flow over to Monday 21 Feb. evening. Feel free to write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill: SECTION 7: TERMS OF OFFICE SECTION 8: REMOVAL FROM OFFICE SECTION 10: REMUNERATION SECTION 12: CONFLICT OF INTEREST [Kindly show which Section you are discussing, it will help with feedback and input to the main Report] SECTION 7: This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners. 7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term. (6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause. SECTION 8: There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following: 8. (1) (e). Incompetence; Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory? What about 8. (1)(h): A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1); Question: Does this make perfect sense? Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place? SECTION 10: REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance. Question: Your thoughts on this? SECTION 12: While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues. So we will discuss ‘CONFLICT OF INTEREST’: This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion: 12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if -- (b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try. Sincerely, Nyaki
Dear Nyaki I have comments on the following and sorry to take you back but I missed out the discussion on section 5 and 6. SECTION 5: APPOINTMENT I would like to start by supporting Kay Kerubo who does not like the idea of appointees being endorsed by Parliament. And to support this, article 233 (2) of the constitution says the Public Service Commission is appointed by the President with the approval of the National Assembly. Say for example we have one dominant political party (this is informed by recent comments by some section of parliamentarians claiming they have political muscle in the house due to their numbers) and the President’s choice is approved by the majority of the dominant party only, wont the appointments procedure for the Communications Commission be indirectly controlled by that dominant political party? Secondly, lthough persons or organisations will be invited to nominate candidates – which means that civil society has a chance to make an input – the procedure is not open and transparent, given that the Public Service Commission is not required to publish the list of nominations and to interview candidates in public for example as we have seen with the JSC vetting. Again, the President has the power of finally selecting the commissioners without any requirement for transparency. SECTION 6: DISQUALIFICATION The Bill in its list of disqualifications for appointment attempts to ensure that the Commission is protected against interference, particularly of a political or economic nature. The exclusion of the entire public service, however, seems overzealous and questionable in light of the provision in the constitution that the commission should be “representative of a broad cross section of the population of the Republic”. Under the envisaged provisions would academics in public Universities who posses qualifications in say broadcasting and ICT, for example, have a chance to serve on the commission considering they are remunerated under the state? SECTION 7: TERMS OF OFFICE On 7 (6), I am also not clear on whether the Commissioners will be like those of KNHRC, who are in full employment. However, I think it is important to guarantee the security of tenure of members to limit the influence of political authorities on their decisions. SECTION 8: REMOVAL FROM OFFICE 8 (b) and (e) are subjective removal e.g. ...inability to perform the duties...efficiently; and incompetence. My I suggest that this be done through a vote say by 2/3 of the commissioners? The process of removal needs to be clear. SECTION 10: REMUNERATION I suggest that this be pegged to other existing commissions. And finally I also agree with McTim and Victor of Article 19 who talk of the need to have best practice. The Constitution in its article 34 (3) provides for broadcasting regulation which is “independent of control by government, political interests or commercial interests”. The law is important to enable it to live up to this title "independence', and may I say, this is our opportunity to contribute and push for this independence.
Dear Kictanet Members, Tomorrow is Day 6 and I welcome you to continue the debate that started on Friday (Day 5) as outlined in the original email below. Here is a summary from the contributions so far. Grace Githaiga gave a very lengthy contribution on various sections, in Section 7 (6) she said it is not clear whether Commissioners will be in full employment but added that there has to be some security of tenure to guard against political influence. In Section 8(b) and (e) –on which involve gross misconduct and incompetence – she suggests it should be dealt with through a 2/3 vote by the Commissioners. And in Section 10 on Remuneration she suggests it should not be left solely to the Minister (aka Cabinet Secretary) but to be pegged to existing Commissions. Muriuki’s concern with Section 11 is the need for a clause to enable interested parties to access Minutes of Commission meetings. However, Matunda wonders whether this be covered under "access to information" 'principle' in the new constitution. Muriuki further emphasized that Section 11(3) should be clear that a quorum should constitute at least 5 Commissioners and meetings must be held on Kenyan soil. In addition, the Bill should be clear on the minimum number of meetings per annum. He also commented on Section 12 (1) (b) basically arguing that a Commissioner does not have control over what his/her family members do. He further emphasized that it is contradictory especially considering Section 6(1) where are person cannot be a Commissioner if: e) a family member has a direct or indirect financial interest in the sector; f) business partner or associate holds an office in or with, or is employed by, any person or bosy, whether corporate or unincorporated, which has an interest contemplated in paragraph (f) Muriuki, I SO AGREE with you that Section 12(1)b and Section 6(1) e and f….especially f need serious rethinking and rewriting to communicate effectively. The key here is ...”less can mean more”. May the debate on from Day 5 (Friday) continue tomorrow Day 6....…. Best Wishes, Nyaki From:Kicatnet Sent: 18 February 2011 05:10 Dear Listers, DAY 5-6: The discussion today will flow over to Monday 21 Feb. evening. Feel free to write over the weekend as well. It is drawn from p. 7-8 of the Draft Bill: SECTION 7: TERMS OF OFFICE SECTION 8: REMOVAL FROM OFFICE SECTION 10: REMUNERATION SECTION 12: CONFLICT OF INTEREST [Kindly show which Section you are discussing, it will help with feedback and input to the main Report] SECTION 7: This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners. 7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term. (6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause. SECTION 8: There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following: 8. (1) (e). Incompetence; Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory? What about 8. (1)(h): A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1); Question: Does this make perfect sense? Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place? SECTION 10: REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance. Question: Your thoughts on this? SECTION 12: While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues. So we will discuss ‘CONFLICT OF INTEREST’: This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion: 12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if -- (b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try. Sincerely, Nyaki
Day 6 continues for a few more hours.......though you can continue the discussion during the week but under this header. SUMMARY SO FAR: 1. Grace Githaiga gave a very lengthy contribution on various sections, in Section 7 (6) she said it is not clear whether Commissioners will be in full employment but added that there has to be some security of tenure to guard against political influence. In Section 8(b) and (e) –on which involve gross misconduct and incompetence – she suggests it should be dealt with through a 2/3 vote by the Commissioners. And in Section 10 on Remuneration she suggests it should not be left solely to the Minister (aka Cabinet Secretary) but to be pegged to existing Commissions. 2. Muriuki’s concern with Section 11 is the need for a clause to enable interested parties to access Minutes of Commission meetings. However, Matunda wonders whether this be covered under "access to information" 'principle' in the new constitution. Muriuki further emphasized that Section 11(3) should be clear that a quorum should constitute at least 5 Commissioners and meetings must be held on Kenyan soil. In addition, the Bill should be clear on the minimum number of meetings per annum. 3. Muriuki also commented on Section 12 (1) (b) basically arguing that a Commissioner does not have control over what his/her family members do. He further emphasized that it is contradictory especially considering Section 6(1) where are person cannot be a Commissioner if: e) a family member has a direct or indirect financial interest in the sector; f) business partner or associate holds an office in or with, or is employed by, any person or bosy, whether corporate or unincorporated, which has an interest contemplated in paragraph THE ISSUES BEING DISCUSSED: Drawn from p. 7-8 of the Draft Bill: SECTION 7: TERMS OF OFFICE SECTION 8: REMOVAL FROM OFFICE SECTION 10: REMUNERATION SECTION 12: CONFLICT OF INTEREST [Kindly show which Section you are discussing, it will help with feedback and input to the main Report] SECTION 7: This includes standard issues like length of term for the Chair which is 5 years and 4 years for the Commissioners. 7(4) and (5): The point here is that a Commissioner can remain in Office at the expiry of his/her term until a successor appointed but this should not exceed 45 days. The same Commissioner can be re-appointed for one more term. (6) The point in this sub-section is that a Commissioner serves in full-time capacity and not allowed to have any other employment Question: What do you think particularly of Section 7 (6) above? Your response to this has implications for 8 (1) g on removal from the office you break this clause. SECTION 8: There are 9 reasons for removal from Office and most are standard but I would like you to discuss the following: 8. (1) (e). Incompetence; Question: Do you think this should be qualified further as it can be subject to abuse when so general? Or is it self-explanatory? What about 8. (1)(h): A commissioner may be removed from office on account of failure to disclose an interest in terms of section 12(2)(a) or voting or attendance at, or participation in, proceedings of the Commission while having an interest contemplated in section 12 (1); Question: Does this make perfect sense? Do you think SECTION 12 on CONFLICT OF INTEREST should come earlier eg. after No. 7 TERMS OF OFFICE and before NO. 8 REMOVAL FROM OFFICE? or should it be before No. 8.? or is it in the right place? SECTION 10: REMUNERATION: Basically this has been left to the Minister with concurrence of the Minister of Finance. Question: Your thoughts on this? SECTION 12: While I am in this section, can I comment that the Table of Contents MUST synchronize with the main titles in the main body. For example the TOC reads ‘Conflicting Interests’ and the main body is ‘Conflict of Interest’….those can debatably be two different issues. So we will discuss ‘CONFLICT OF INTEREST’: This includes the standard issues but section needs some editing; however there are two issues that may be open in discussion: 12(1)(a) A Commissioner may not vote at, attend or in any the manner participate in, any meeting or hearing of the Commission, nor be present at the place were the meeting is held if -- (b) in relation to an application relating to a licence, he or she or his or her family member is a director, member or business partner or associate of or has an interest in the business of the applicant or of any person who made representation in relation to the application; or……etc Question: Imagine that this was a determining question in an Exam, asking you to simplify this by first explaining what it means? Would you get the pass mark? Please try. Sincerely, Nyaki
participants (5)
-
Barrack Otieno -
Catherine Adeya -
Grace Githaiga -
muriuki mureithi -
Vitalis Olunga