CCK Director-General Charles Njoroge and Information and Communications Minister Samuel Poghisio address the press at a past function. Photo/FILE
The controversy surrounding the renewal of Mr Charles Njoroge’s contract as director-general of the Communications Commission of Kenya (CCK) appeared set to continue after the battle spilled to the courts.
The CCK board’s decision to end Mr Njoroge’s contract was rejected by Information and Communications minister Samuel Poghisio and the court could set a precedent by deciding how parastatal appointments should be made. (Read: CCK boss gets a new term after minister blocks bid to oust him)
A constitutional application has been filed in the Court of Appeal, sitting as the Supreme Court, to determine whether Mr Poghisio was within his constitutional powers to order the re-appointment of the CCK chief executive against the board’s recommendation.
A five-judge bench has been constituted where the Commission for the Implementation of the Constitution (CIC) is seeking the court’s direction on the question of State appointments under the new Constitution.
It is to this court that a telecoms player has gone seeking answers on the CCK matter.
Mr Ibrahim Mwangi Athumani, who has been involved in the telecommunications sector for over three decades, wants the court to determine the principles to be applied in appointments of public officers in State organs under Article 232(2) of the Constitution.
Mr Athumani wants the the court to make an advisory opinion regarding appointments for State jobs under Article 163 (6) of the new Constitution.
He says the minister violated the mandatory requirements of Article 73 and 259 by disregarding the decision of the CCK board while renewing the contract of Mr Njoroge for a further three years.
The board had recommended that Mr Njoroge’s term should not be renewed due to his below par performance following an appraisal conducted in the wake of an application by the director-general on December 29, 2010, seeking the renewal of his contract after his first term ended in June.
However, the minister is alleged to have disregarded the board’s recommendations and went ahead to renew Mr 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 Mr Njoroge.
On March 10, Mr Philip Okundi — who chairs the CCK board — wrote to Mr Poghisio, advising against the renewal of Mr Njoroge’s contract and recommended that the director-general 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.
“Mr Njoroge has failed to satisfy the board as to his suitability, competence and integrity to continue serving as director-general of CCK,” said the board’s letter to Mr Poghisio.
The recommendations were based on the outcome of the appraisal in which Mr Njoroge scored 60 per cent — below the 70 per cent cut-off point set by the board for possible renewal of his contract.
Mr Okundi said the score was below the minimum expectation of a chief executive of a regulatory body and in a dynamic industry as telecommunications.
“In view of the above performance the board recommends the termination of the contract,” read part of Mr Okundi’s letter Mr Poghisio.
Mr Okundi is the immediate former MP for Rangwe and is an ICT expert.
And in a memorandum on behalf of Phone Book Limited, Mr Athumani, through the law firm of Churchhill Midiwa wants to be enjoined in the CIC proceedings as an interested party, saying the Constitution should be interpreted in a manner that advances the rule of law, human rights and fundamental freedoms in the Bill of Rights.
His application says the minister capriciously and unilaterally directed that Mr Njoroge be re-appointed for a second term “notwithstanding the objective advice of the board and in brazen show of impunity, has disregarded the requirements imposed by the new Constitution.”
The application further states that the Head of Public Service, Mr Francis Muthaura, had previously directed that ministers may not revoke the recommendations of boards of directors in determining whether or not to renew contracts for chief executives.
Mr Njoroge, 53, who has a master’s degree in Economics and a post-graduate certificate in Telecommunications Regulation, took over leadership of the CCK from Mr David Waweru on July 21, 2008.
He has worked with the CCK since March 1999 and has 28 years experience in the sector, having previously worked for the defunct Kenya Post and Telecommunication Corporation.
During his three-year-tenure, CCK has implemented several sector regulations it said were aimed at protecting consumers and tackling anti-competitive behaviour among the operators.
Mr Njoroge’s stand on some of the sticky issues has seen him take opposite positions with Information PS Bitange Ndemo.
Among the issues that were hotly contested were the Tariff and Competition regulations in the telecommunications industry and the laws on broadcasting.
Network quality
Others included issuance of frequency spectrum that operators want reviewed and the release of the operators’ network quality performance to the public for the first time.
Njoroge’s position on the ongoing price war in telecommunications industry that it is healthy and should be encouraged has put him at crossroads with some operators, who see it as dangerous to the sector and could result in revenue losses and job cuts.
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