NAIROBI, Kenya, Aug 10 – The High Court has nullified the appointment of Charles Njoroge as the Director General of the Communications Commission of Kenya (CCK) until a case filed by a consumer lobby is heard and determined.,
High Court Judge David Maraga has in the meantime directed the CCK Board and the Minister for Information and Communication Samuel Poghisio to appoint a DG in an acting capacity until the row is resolved.
The Consumer Federation of Kenya (Cofek) through its lawyer Henry Kurauka had wanted Engineer Njoroge’s appointment quashed claiming that the Information Minister ignored the CCK Board’s stand and renewed his contract for three years effective from July 7, through a gazette notice published on July 29.
In seeking the nullification, Cofek said in its court documents that the minister acted illegally: “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 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 percent.”
Cofek also accused the minister of sensitising the matter and claimed that his actions were unilateral and unconstitutional as it disregarded provisions that call for competitive recruitment of government officers.
“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,” Cofek said in its arguments.
“His action is at best a selective reading of the applicable laws and at worst a politicisation of sensitive regulatory agencies whose reputation is severely dented by such unilateral decisions which have neither basis in law or could be said to be part of a civilised society such as Kenya.”
The lawyer told the court that the minister’s action was a clear contravention of a circular issued on November 23, 2010 by Head of the Public Service Amb Francis Muthaura to all Cabinet Ministers, Assistant Ministers, Permanent Secretaries, the Attorney General the Controller and Auditor General and which circular was copied to Prof Nick Wanjohi as Private Secretary to 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 the CEO 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 an acting CEO, in consultation with the parent Ministry 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.”
The board had suggested that Eng Njoroge’s term should not be renewed due to his performance following an appraisal conducted in the wake of his application seeking the renewal of his contract after his first term ended in June.
The minister disregarded the board’s recommendations and went ahead to renew Eng Njoroge’s contract despite his departure having been agreed on in a resolution by the board, majority of whom had expressed difficulties in dealing with him.
On March 10, CCK Board Chairman Philip Okundi wrote to Mr Poghisio, advising against the renewal of Eng Njoroge’s contract and recommended that the he be asked to proceed on terminal leave to pave the way for the Board to appoint an acting Director-General and begin the process of recruiting a new one.