Cofek against CCK’s DG- Charles Njoroge, goes to court

Posted on August 4, 2011

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Statement from Cofek’s SG on the renewal of contract of Eng. Charles Njoroge as Director-General of the Communications Commission of Kenya…

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;

1. 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 Charles 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

2. Orders of prohibition against the Minister for Information and Communications in making unilateral decisions and specifically for;

1. 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%.

2. 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

3. 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)

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