Court revokes CCK Director General's appointment following case by Cofek

A Nairobi Court on Wednesday revoked appointment of Communication Commission of Kenya Director General Charles Njoroge following a case filed by Consumers Federation of Kenya (Cofek).

Issuing the temporary orders on Wednesday, High Court judge Justice David Maraga also directed the CCK Board to appoint an acting director general.

The order will stay in place pending the hearing and determination of a case filed by the Consumers.

"...Charles J.K. Njoroge shall with effect from the date hereof cease to be or to act as the Director General of the Communications Commission of Kenya until this matter is heard and determined. It also means that the Board of the Communication Commission of Kenya can only appoint somebody on an acting basis and shall not appoint a substantive holder of that post until this matter is heard and determined. The Petitioners shall file and serve the substantive application within 15 days," reads Judge Maraga's ruling in part.

The judge said he would make a final decision after hearing the Minister's side of the argument.

However he said the petitioners had made out an arguable case entitling them leave to apply for the said orders.

Welcoming the court's decision Cofek Secretary General Stephen Mutoro said Mr Poghisio had ignored advice of the Board of the Communications Commission of Kenya (CCK) vide its letter of 9th March 2011 advising against re-appointment of Mr Njoroge for failing to attain the set threshold in an interview.

"I welcome the High Court orders for the CCK Director General Mr Charles Njoroge to immediately vacate office pending determination of possible illegality of the Information and Communications Minister Mr Samuel Poghisio to have purported to reappoint Mr Njoroge without the CCK Board’s blessings," said Mr Mutoro in an online correspondence with The Nation.

Mr Mutoro added: "It is certainly a landmark win for the new Constitution Article 10(2)(c) which spells out national values. It is a win for Kenyans against impunity. It is a red flag for Ministers who ignore the role of the Boards of parastatals. We are happy that a similar challenge at the Kenya Bureau of Standards has been rectified. There are about ten other parastatals with such challenges. They know themselves. We will be writing to them to voluntarily undo the same."

Mr Mutoro called on the CCK Board to meet and announce an Acting Director General saying CCK is a sensitive institution which must not have its operations affected by the transition.

The petition

Cofek had sought court's intervention 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 7th July 201.

The said notice was dated 20th July 2011 but published on 29th July 2011.

"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 per cent," reads Cofek's statement in part.

The consumers federation also sought orders of prohibition against the Minister for Information and Communications in making unilateral decisions and specifically for ignoring the decision and advice of the CCK Board.

Mr Mutoro said the minister’s action is a clear contravention of the circular issued on 23rd November 2010 by Secretary to the Cabinet and Head of the Public Service Francis Muthaura requiring a CEO of a State Corporation wishing to be reappointed to indicate interest by writing to the relevant Board at least six months before expiry of term.

According to Mr Muthaura's circular the Board would evaluate the performance of the CEO and make a report to the appointing authority with a recommendation on either renewal or termination of the contract upon expiry.

In the event the Board does not recommend renewal of the contract and to ensure a smooth transition, the CEO is supposed to proceed on terminal leave to pave way for the recruitment and appointment of a new CEO.

In the CCK saga, the Board was to recruit an 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 awaiting recruitment of a new CEO.

However, argues Cofek, Mr Poghisio acted unilaterally and in disregard to the new constitution by re-appointing Mr Njoroge against the advice of CCK Board.

"The Minister’s action was 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," reads partly the Cofek's petition.

Wednesday decision by the court now sets stage for another epic battle that started within CCK board on the renewal of Mr Njoroge's re-appointment.