CIO East Africa (Nairobi)

8 August 2014

Kenya: High Court Nullifies Appointment of Six-Member ICT Authority Board

The High Court yesterday quashed the appointment of the ICT Authority board members following a case filed by the ICT Association of Kenya (ICTAK) through its secretary general in January.

High Court Judge George Odunga ruled that the appointment of the board members by ICT CS Fred Matiang'i was illegal, unprocedural and issue of partial invalidity did not arise.

"To exclude the public from the exercise of statutory powers constitutes improper exercise of powers since it amounts to failure to consider a relevant factor in this case public participation and transparency," said Justice Odunga in his ruling.

The ICT Authority board members - who have been in office since January this year - are Timothy Waema, Esther Kibere, Joseph Dena, Elijah Omwenga, David Mugo and Ugas Sheikh Mohamed.

Among the functions of the board - which had a 3-year term - was delivery of the ICT Authority's mandate which is to co-ordinate the ICT sector and to market Kenya as a local and international ICT hub.

In its application, the ICTAK through its secretary general Kamotho Njenga, had claimed that paragraph 6 (2)(e) of Legal Notice 183 of 2013 provided that not more than 6 persons, not being public officers, be appointed, the Cabinet Secretary proceeded to include persons who are public officers as per under article 260 of the Constitution of Kenya. The lobby also takes issue with the fact that whereas paragraph 6 (3) of the Notice requires that members of the board be appointed at different times so that the respective expiry dates of their terms in office fall at different times , the cabinet secretary has gazetted the entire set of appointees on a single effective date.

The ICTAK secretary general had also called on ICT Cabinet Secretary Fred Matiang'i to "immediately revoke the illegal gazette notice NO 444" which contained the announcement of the board's appointment.

Yesterday's High Court ruling did not go down well with the CS Matiang'I, who went online to express his disapproval with the ruling on his Twitter page stating: "We will immediately appeal High Court decision on ICTA Board. The ICTA statute does not require public participation." CS Matiangi's next tweet was more expressive of this displeasure: "Vaxatious litigation, selfish private pursuits disguised as public interests remain some of the frustrating challenges in the ICT sector."

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