An unpredictable governance framework will have a chilling effect on the ICT sector

What you need to know:

  • Three events in the ICT sector, all centred on the communications regulator, are likely to have far-reaching ramifications going forward.
  • A presidential directive to a supposedly “independent” regulatory agency, one with its own board of directors, breaks the conventional rules of corporate governance and exposes a board that would have otherwise wanted to look and act independent.
  • An unstable or unpredictable governance framework for the ICT sector may have a chilling effect, as investors may think twice about whether Kenya will retain its pride as the preferred gateway into the East African communications market.
  • A deliberate and prolonged disregarding of court orders and institutional independence would have a direct and negative impact on the long-term performance of the sector.

Last week we had three little tsunamis sweeping the ICT sector. Three events, all centred on the communications regulator, are likely to have far-reaching ramifications going forward.

The first was that the embattled director-general of the Communication Authority of Kenya (CA) obtained a court order rescinding a decision to send him home on compulsory leave pending some human resources-related investigations.

It is not the first time that the CEO of the CA has been sent home unceremoniously, but it was the first time that a court has ordered his reinstatement – and that court order was ignored.

Next was the shutdown of the four leading TV stations by the Ministry of Interior, pending ongoing investigations related to the mock swearing-in of the opposition leader.

'PARALLEL GOVERNMENT'

The allegation is that the stations are complicit in a wider agenda to install a parallel government or intended to broadcast an illegal swearing-in activity or both.

Either way, a court order was sought and issued to restore the stations back on air, pending the hearing and determination of the case. This court order has also been ignored and Kenyans have been encouraged to watch any of the other 50 local TV other channels available.

Finally, the third event, and one perhaps with much deeper ramifications, is that the President directed the communications regulator to use part of its Universal Service Fund (USF) money to support and advance police reforms.

Specifically, the CA was tasked to move Sh1 billion to the Directorate of Criminal Investigations (DCI) so this agency would finalise its long-term project of building a forensic lab that would include cyber-forensics.

No one doubts the importance of training and equipping our security agencies to better deal with the ever-changing and emerging threats that are increasingly being executed online.

BREAKING CONVENTIONAL RULES

The DCI deserves all the money it needs to provide security. The problem, however, is how it is getting access to this money.

A presidential directive to a supposedly “independent” regulatory agency, one with its own board of directors, breaks the conventional rules of corporate governance and exposes a board that would have otherwise wanted to look and act independent.

The fact that the Universal Service Advisory Council, in conjunction with the Communications Authority, has failed to efficiently disburse the funds to underserved locations is not sufficient to redirect the huge amount in such an off-the-cuff manner.

In any case, the President, as the appointing authority of the chairman of the Communication Authority Board, would have quietly passed the message and formally achieved the same results — without publicly calling into question the independence of the regulator as enshrined in the Constitution.

UNPREDICTABLE GOVERNANCE FRAMEWORK

Further still, the Kenya Communications Act and its Regulations specifically defines which type of projects are to benefit from the USF and it is debatable whether police projects easily fit into that criterion.

But that is now water under the bridge. It appears the President’s political handlers want him to project the image of a tough leader who exercises his political power for the benefit of the population as a whole, and only time will tell if this approach will work in contemporary Kenya.

Still, two court orders being disregarded and one “off-the-cuff” declaration in the space of five days, within a single ministry, sounds like an overdose.

What’s worse is that a very unstable or unpredictable governance framework for the ICT sector may have a chilling effect, as investors may think twice about whether Kenya will retain its pride as the preferred gateway into the East African communications market.

REVISIT ACTS OF COMMISSION AND OMISSION

It is time for the President’s handlers to always remember that we are in a globally competitive market and investments — local and foreign — in the sector will go where there is a better sense of legal and judicial predictability.

Indeed, even if our politics continues to be messed up the way it is, but we retain a level of legal and judicial predictability, we will still manage to fend off Tanzania as an upcoming competitor.

But a deliberate and prolonged disregarding of court orders and institutional independence would have a direct and negative impact on the long-term performance of the sector.

It is therefore time to urgently revisit the acts of commission and omission effected by the executive during the last one week.

Mr Walubengo is a lecturer at Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @Jwalu