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Why ousted Communications Authority board members won’t just let go

By Frankline Sunday | February 21st 2016
Communications Authority of Kenya (CIA) Headquarters in Nairobi

NAIROBI: Adrian Kamotho Njenga sent a job application on email that was never delivered, setting up the Communications Authority for what would be a long and vicious boardroom war.

He hoped to beat the deadline that was minutes away, only to receive an undelivered notification.

That would form the basis of a rigorous court battle where Njenga successfully challenged the subsequent appointments of the directors who were involved in a near fist-fight Thursday.

Sparks flew last week at the CA offices along Waiyaki way as months of tense undercurrents finally came to the fore.

Business on that morning came to a standstill as Administration Police and ousted board members faced off for more than three hours. Seven directors had been kicked a week earlier but had refused to leave office, instead challenging their termination in court.

The conflict, which has since roped in the Ministry of Information, Communication and Technology (ICT) and is sustained in court through at least three lawsuits, is set to escalate as each side presents new accusations. Trouble started on April 15, 2014, the deadline for receiving the applications to the vacant board positions.

It was 8.59 am when Njenga’s application bounced back, only to go through when he re-sent three hours later.

When the then ICT Cabinet Secretary Fred Matiang’i gazetted names of the shortlisted candidates on April 24, 2014, Njenga’s was missing.

Njenga moved to court and sued the authority, Dr Matiang’i and the seven new board members; Wilbert Kipsang Choge, Kennedy Monchere, Grace Mwendwa, Prof Levi Obonyo, Helen Kinoti, Beatrice Opee and Peter Munywoki.

In his suit, Njenga argued that the servers used by the selection panel to receive applications to the position could not handle the large capacity of email applications resulting in his bounced email application.

He claimed this technical inadequacy of the selection panel, which caused his email application and possibly that of other applicants to bounce flawed the board’s recruitment process.

In May 2015, exactly one year after filing his suit, High Court Judge Justice George Odunga handed Njenga a rare victory and the appointment of the board was annulled and the board stood dissolved.

CS Matiang’i, while terming the lawsuit as frivolous, instructed Attorney General Githu Muigai to appeal the decision temporarily securing the jobs of the embattled board.

“We will abide by the decision of the court because as a government we respect the rule of law and the constitution which we all enacted,” he said then. “However, is it unfortunate when every time the government meets to make decisions or appointments and consults all stakeholders widely, some individuals still move to the courts later under dubious grounds,” he said.

The Communications regulator has been no stranger to legal disputes and boardroom acrimony. In 2011, the then Director General of then Communications Commission of Kenya (CCK) Charles Njoroge found himself at the centre of a boardroom revolt.

Mr Njoroge had fallen out with several board members and when the time came for him to re-apply for another three-year term, his performance in an appraisal was found to be wanting. The board of directors, led by Mr Philip Okundi, advised the appointing authority, the ICT ministry that Njoroge’s term as director general should not be extended and instead he should proceed on terminal leave.

Mr Samuel Poghisio, the then ICT minister ignored the board and proceeded to hand Njoroge a new term. The Consumer Federation of Kenya (COFEK), in the first of what was going to be a series of lawsuits against the regulator successfully sued to overturn the appointment sending Njoroge packing. This paved the way for the appointment of Mr Francis Wangusi, the current Director General.

Today, the stalemate between the board members shows no sign of abating even as each of the feuding sides presents new damning information regarding their opponent.

Mr Kipsang Choge, the most vocal of the ousted board members accuses current Board Chairman Mr Ngene Gituku of covertly pushing for the dissolution of the board through influencing the ICT ministry to withdraw the appeal.

“The board chairman is anti-reforms and the board has expressed concerns in several high profile issues which he is hell-bent on pursuing,” says Mr Choge. “He has made questionable expenditure on the authority budget and is proposing others that we are opposing.”

But Gituku said, “The board stands dissolved as per the May 2015 court order and the board members who have been removed from office have prevented the government from appointing a new board.”

At the centre of the storm that rocks the Board are several high profile cases with lucrative price tags. The first is the Sh2 billion licence renewal fees for Kenya’s second largest mobile service provider, Airtel Kenya.

Airtel Kenya’s frequency spectrum licence expired in February last year and CA issued the mobile operator with Sh2.1 billion demand letter for issuance of a new 10-year licence.

Airtel Kenya, which has been having difficulty in revenue generation routinely citing Safaricom’s market dominance, protested this figure as too high while arguing its acquisition of the Essar licence should have guaranteed some reprieve.

In October last year, CA recanted its position and stating that Airtel need not pay the Sh2.1 billion after all. According to Mr Gituku, the whole board was in agreement on this new development. “We agreed that Airtel will not be required to pay for renewal of their licence and all the board members passed the resolution and it is in the minutes,” explains Gituku.

However, other non-executive board members and Treasury are said to have piled pressure on the Communication Authority to collect the Sh2 billion from Airtel.

Last Wednesday, in the midst of the fiery wrangles at the board, Sunil Bharti Mittal, founder of Bharti Airtel made a quiet State visit to President Uhuru Kenyatta.

Mr Mittal, who was reportedly accompanied by Airtel Kenya’s new board chairman Titus Naikuni at the State House meeting, discussed the challenges facing his company’s Kenyan division.

Airtel has consistently appealed to regulators and the government at several occasions, that the country’s current market structure and Safaricom’s dominant position does not allow for fair competition.

Airtel has gone further and stated that it risked closing shop if the government does not make legislative intervention to address competition in the country’s vibrant ICT sector. The mobile phone operator’s efforts to have Safaricom broken up into smaller companies has however been unsuccessful and the recent State visit by Airtel’s founder is the boldest attempt yet to put its case forward.

However, the Sh2.1 billion Airtel licence dispute is just one of the potential sources of conflict for the board.

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