File | NATION A number of Cabinet ministers are fearing that their appointments to parastatals could be overturned by courts over irregularities following the recent ruling by Justice David Maraga, which sent CCK director-general Charles Njoroge (right) home. His contract was controversially renewed by Information minister Samuel Poghisio.
By MUGUMO MUNENE mmunene@ke.nationmedia.com
Posted Saturday, August 13 2011 at 22:00
Posted Saturday, August 13 2011 at 22:00
IN SUMMARY
- Following a court ruling that sent home CCK boss a number of ministers are staring at the possibility that the courts may overturn some of their controversial appointments of State corporations chiefs
Anxiety has gripped sections of the Cabinet over the future role of ministers in appointing parastatal chiefs after their powers were severely shaken by the courts this week.
Following a court ruling that sent home Communications Commission of Kenya boss Charles Njoroge, a number of ministers are now staring at the possibility that the courts may overturn some of their controversial appointments of parastatal chiefs.
But government insiders interviewed by the Sunday Nation say the controversy over appointments of heads of parastatals is about powerful politicians angling to have unscrupulous control over the billions of shillings made and controlled by State corporations ahead of the next General Election.
“I can tell you that there are a lot of fights that have had to be held back because it’s about a struggle for control over strategic parastatals. But we are becoming a nation of procedures,” said an official at the Office of the President who requested anonymity because he had not been authorised to comment directly about the matter.
According to the official, there is probably more than meets the eye in the months-long controversy at CCK, especially over the powerful control of frequencies for radio and TV ahead of next year’s elections.
He would not comment further or go on the record, he said, because the matter was still up for adjudication by the courts.
The possibility that some of the appointments could be overturned was touched off by High Court Judge David Maraga who sent Mr Njoroge packing this week.
The judge found that the minister needed to explain whether he followed the new Constitution and laid-down procedures in reappointing Mr Njoroge to head CCK for a second three-year term.
Justice Maraga issued interim orders that will keep Mr Njoroge from office until the matter is heard fully.
Muthaura circular
In making this interim determination, Justice Maraga quoted the new Constitution and a circular issued by the Head of Civil Service and Secretary to the Cabinet Francis Muthaura issuing guidelines on how parastatal chiefs were to be re-appointed after their terms expire.
Sources in Mr Muthaura’s office say the civil service chief issued the circular in November over growing controversies in which ministers disagreed with parastatal boards.
Some of the ministries in which there are running controversies include Environment over the vacant position of the National Environmental Management Authority chief executive.
The ministry of Water has also been embroiled in boardroom battles regarding the hiring and firing of board directors and CEO of the Athi Water Services Board and Nairobi City Water and Sewerage Company.
Parastatal boards are by law appointed by ministers. The parastatal chiefs report to the board, which in turn advises the minister.
Mr Njoroge’s contract expired in July, and the board of directors chaired by Eng Philip Okundi declined to recommend him for a further three-year term.
According to the assessment of the board, Mr Njoroge had scored 60 per cent on his performance evaluation, 10 points short of the pass mark set by the board.
When the board wrote to Information minister Samuel Poghisio, he side-stepped the recommendation and re-appointed Mr Njoroge on July 20.
In a Kenya Gazette notice dated July 20, Mr Poghisio used powers in Section 6 (1) (b) of the Kenya Information and Communications Act to reappoint Mr Njoroge for a three-year period.
The law on which the minister relied states that the management of the Commission shall vest in a Board of Directors of the Commission, which shall consist of a chairman who shall be appointed by the President and a Director-General who shall be appointed by the minister.
“This takes effect from July 7, 2011,” said Mr Poghisio, in the gazette notice.
Mid this month, a Constitutional Court dismissed a case seeking to block the renewal of Mr Njoroge’s term. Suing on behalf of Phone Book Ltd, Mr Ibrahim Mwangi Athumani had asked the court to block the minister from issuing a gazette notice, saying the move would be unconstitutional.
According to Mr Athumani, the minister had violated the mandatory requirements of Article 73 and 259 by disregarding the decision of the CCK board while renewing Mr Njoroge’s contract.
Justice Daniel Musinga, however, dismissed the application, finding that Mr Athumani had hidden from the court information that a similar application was pending before the Supreme Court.
It appeared that Mr Poghisio had acted in direct contravention of a circular issued by Mr Muthaura on November 23, last year.
In the circular, Mr Muthaura drew the attention of ministers and their assistants, permanent secretaries, the Attorney-General and the Auditor-General to guidelines drawn up in November 2004 and renewed in May 2008.
Mr Muthaura should remind the top government echelons about the laid-down procedures for the appointment and reappointment of parastatal chiefs.
At least six months
According to the directive, any parastatal chief wishing to be reappointed should inform the board to which he reports at least six months before the expiry of his term.
The board is then required to evaluate the performance of the chief executive and make a report to the appointing authority with a recommendation on either a renewal or termination of the contract.
The circular directs that in the event that the board does not recommend renewal, the affected chief executive would proceed on terminal leave to pave way for the recruitment of his or her replacement. In the interim period, the board would recruit an acting chief executive.
For good measure, and probably to indicate that President Kibaki had issued the instructions, the circular was copied to the Private Secretary in the Office of the President, Prof Nick Wanjohi.
When the Consumers Federation of Kenya went to court, they told the judge that the minister ignored the laid-down procedures and Article 10 (2) (c) of the Constitution.
Applying the law
The Article binds all State organs, State officers, public officers and all persons that in interpreting the Constitution and applying the law, they shall uphold national values and principles which include patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people.
The judge said he would rule at a later stage on whether the minister had broken the law but determined that the case was arguable and hence ordered Mr Njoroge out of office until the case was heard and the legality of his reappointment determined.
The Ministry of Industrialisation is also steeped in controversy over the management of the powerful Kenya Bureau of Standards (Kebs).
Acting Industrialisation minister Amason Kingi earlier this month sacked Kebs Managing director Joseph Koskey through a Kenya Gazette notice dated August 4, which nullified the appointment earlier made by former Industrialisation minister Henry Kosgey.
His appointment had sparked controversy with Permanent Secretary Karanja Kibicho refusing to sign his appointment letter. Mr Koskey said early this week that he had not been paid since October because Dr Kibicho had refused to sign his appointment letter.
Dr Kibicho and other members of the board accused the minister of ignoring a shortlist of candidates forwarded by the board in which Mr Koskey had failed to make it to the top three of shortlisted candidates.
The exit also comes even as a case faulting the legality of the appointment is pending in court. Following the sacking, Rongai MP Luka Kigen, Mosop’s David Koech and Mr Sammy Mwaita (Baringo Central) demanded Mr Koskey’s reinstatement, claiming he had increased the bureau’s revenue collection in Mombasa from Sh12 million to Sh120 million.
“It is not proper for anyone to work for 10 months without a salary,” Mr Koech said.
Mr Mwaita said: “He has turned around Kebs and we wonder why he has been sacked,” he stated.
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