Over the last one year, major ICT-related projects and dealings have landed on the desks of judges. The ICT in Education project, otherwise known as the Laptop Project, Digital TV Migration, and the case against the appointment of the ICT Authority board immediately come to mind.
Other ICT projects that keep threatening to reach judicial desks include but are not limited to the Konza City project, and the recently approved Safaricom national security project.
Although it is debatable whether each of the projects above merits the attention of our courts, it is certain that court cases take time to adjudicate, with outcomes that often divide rather than unite the critical stakeholders involved in a dispute. Court decisions are indeed the epitome of the “zero-sum” game or “winner-take-all” resolution.
In most cases, the stakeholders are still supposed to work together irrespective of the outcome of the court case. In practice, however, no one is ever comfortable working with a party that is subsequently treated as an “opponent” rather than a partner in development.
Take for example the recent case where the court ruled that the ICT Authority board appointed by the Cabinet Secretary earlier in the year was null and void. The party that filed the case against the ICT Ministry, the ICT Association of Kenya, represents sections of the ICT professionals in Kenya.
They felt that the appointment process for members of the ICT Authority board did not strictly follow the various provisions of Legal Notice 183, which constituted the ICT Authority.
Despite winning the case — though the ministry reserves the right to appeal — the real challenge is how the ICT professionals intend to re-engage with the ministry in such a contentious environment.
The Digital TV migration saga is even more contentious, and having gone the whole route of High Court and Court of Appeal, is now before the Supreme Court.
Irrespective of how the Supreme Court rules, the litigants must find a way to work together in order to ensure that Kenya meets its international obligation to migrate to the digital platform by the year 2015.
Meanwhile, it is the public that seems to bear the brunt of the litigation in terms of lost time and opportunity to reap the benefits of an otherwise less contentious ICT sector.
The ICT in Education (Laptop) case, for example, has incurred delays in court that have seen the government reserve money for the project without actually spending it for two consecutive financial years. This amounts to Sh24 billion per year — a whopping Sh48 billion in lost opportunity for the country to begin the long journey of transforming education.
Indeed there may have been procurement challenges that need to be ventilated. However, the time-consuming court injunctions may divert attention from other equally important challenges that range from the infrastructural readiness of rural schools (power, security, etc.) to the readiness of the curriculum and training of teachers to deliver digital content.
Which brings us to the question: Has the ICT sector become too litigious to the point of obstructing delivery and execution of ICT Projects?
This is perhaps the price of democracy. The new Constitution and institutions provide for any citizen to file an objection on any matter that is of public interest. However, in some cases, the cost of the judicial process in terms of time and missed opportunities may ultimately prove to be higher than the anticipated benefit.
We therefore need to urgently consider other forms of adjudication. Perhaps arbitration — the mechanism of resolving issues outside court jurisdiction — may be the answer to some of these disputes.